ALJDEC - Licensing
2023A-13389-CHC-ROC · Registrar of Contractors · 2024-05-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ellen Ann Martinez,
COMPLAINANT
v.
Lee Lawrence Fairbanks
DBA: Barrio Design
License No. ROC 177697,
RESPONDENT
No. 2023A-13389-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 23, 2024
APPEARANCES: Complainant Ellen Ann Martinez appeared on her own behalf via Google Meet. Registrar of Contractors Investigator Gregory Johndrow appeared via Google Meet on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE:
_____________________________________________________________________
FINDINGS OF FACT
Lee Lawrence Fairbanks DBA: Barrio Design (Respondent) is the holder of License No. 177697 issued by the Arizona Registrar of Contractors (Registrar).
On or about August 18, 2022, Ellen Ann Martinez (Complainant) hired Respondent to install a block fence for $5,550.00.
On or about November 20, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Gregory Johndrow. The jobsite inspection was performed on February 2, 2024.
In his notes regarding the jobsite inspection, Investigator Johndrow noted the following:
General Notes:
The site inspection was performed on this date and time. The respondent was not present for this inspection.
The respondent’s license has be revoked.
Photos taken with agency issued Google cell phone.
Audio recorded with agency issued Olympus recorder.
Complaint Item 1: “Paid 1/2 of original contract ($2,500.) he returned later and needed $755 to remove old fence. He came by on 8-25-2023 and asked for money to buy blocks for wall as they were on Sale ($1500.) Masonry blocks were never delivered. He completed removal of Oleander Bush’s and Dug Trench for footing, but never finished. ”
Investigator’s Observations: Verified. The project has not been completed. The respondent has removed vegetation and prepared a footing. No concrete has been poured and the wall has not been completed. The Complainant has paid the full amount of the contract and additional funds to remove all of the vegetation and roots.
Governing Rule: A.R.S. § 32-1154(A)(1): Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Complaint Item 2: “ Numerous texts and phone calls, but always said he would return, but never did. On Oct. 10th my daughter sent him an email requesting an agreement that all work would be completed by Oct. 31st which he agreed to. Oct. 19 worked for one hour. Moving Oleander, cutting the roots to front yard. Last phone call to Lee Fairbanks on 10-25-2023 who stated work would be done by Oct. 31st. ”
Investigator’s Observations: This statement by the complainant does not implicate a workmanship issue for me to inspect or report on.
Governing Rule: N/A
(All errors contained in the original).
On February 5, 2024, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1).
On or about February 20, 2024, Respondent e-mailed an Answer to the Registrar, which stated the following:
I am responding to citation 2023-13389. I did not abandon this job. I was delayed due to labor issues and reached out to Ann Martinez to communicate this. I made two phone calls to my customer and left a voicemail but did not hear back. I am willing to settle this issue with my customer in anyway the ROC will allow me. Respectfully,
Lee Fairbanks
ROC 177697.
On or about March 12, 2024, a Notice of Hearing was issued setting a hearing on April 23, 2024, at the Office of Administrative Hearings, an independent state agency. The Registrar mailed copies of the Notice of Hearing to the parties at their addresses and email addresses of record.
Also on March 12, 2024, the tribunal issued an Order which informed the parties of the Google Meet information for the hearing. Again, this was sent to both parties’ email addresses of record.
Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
At hearing, Investigator Johndrow testified as to the Registrar’s involvement and the above timeline.
Investigator Johndrow testified that Respondent failed to appear at the Jobsite Inspection, and that on November 22, 2023, he noticed that Respondent’s license had been revoked.
Further, Investigator Johndrow testified that he had called Respondent trying to make contact but was unable to speak with Respondent. Also, Investigator Johndrow testified that all mail sent to Respondent was returned as undeliverable.
As to what he observed at the jobsite inspection, Investigator Johndrow testified that while some work had been completed, it was not commensurate with what Complainant had paid.
Finally, Investigator Johndrow, testified that because of Respondent’s license status, the Registrar proceeded directly to a Citation, rather than a Written Directive.
Complainant testified that Respondent participated in an informal settlement conference at the Registrar’s office on March 5, 2204.
Further, Complainant was concerned that Respondent could be harming others should he be allowed to continue to have a contractor’s license.
Administrative notice was taken of Respondent’s prior License record on May 8, 2024. Such prior License record reflected that Respondent’s License No. 177697 was first issued on September 21, 2022, and was revoked on November 22, 2023. The License record further reflected that there was one open case, namely the present complaint, and four disciplined cases.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
The preponderance of the evidence established that Respondents did a minimal amount of work for the amount paid, and never completed Complainant’s project. Further, there was no justification for the same as the revocation of Respondent’s license did not occur until approximately three months later. At a minimum however, Respondent could have made a financial settlement with Complainant, and failed to do the same. Therefore, Complainant established that Respondent abandoned the project in a in violation of A.R.S. § 32-1154(A)(1).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 177697.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.
Done this day, May 8, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Lee Lawrence Fairbanks
DBA: Barrio Design
[email redacted]
Ellen Ann Martinez
[email redacted]
By: OAH Staff