ALJDEC decisions subject to certification as final

2022A-00575-CHC-ROC · Registrar of Contractors · 2022-10-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robin Cook-Palmer,

COMPLAINANT

Trillium Landscape LLC

License No. ROC 327717,

RESPONDENT

No. 2022A-00575-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 22, 2022

APPEARANCES: Complainant Robin Cook-Palmer appeared via Google Meet. Ruben Grajeda appeared via Google Meet on behalf of Respondent Trillium Landscape LLC. Registrar of Contractors Investigator Daniel Edwards appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Trillium Landscape LLC (Respondent) is the holder of License No. 327717 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 22, 2021, Robin Cook-Palmer (Complainant) signed a contract with Respondent for a renovations in her backyard. The contract amount was for $55,077.00.

On or about January 22, 2022, the Registrar received a Complaint containing twenty-two items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Daniel Edwards. The jobsite inspection was performed on February 17, 2022.

Investigator Edwards then issued a written directive on or about March 8, 2022 to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify

the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on March 25, 2022.

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); A.A.C. R4-9-108. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on Friday 1-29-2021.

. . .

You are hereby directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Corners on the top of the media center;

Investigator’s Observation: Parties each agree there is an arrangement in place to remove the strips at the top sides of the media center. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Backfill the grass with rubber pellets

Investigator’s Observation: Turf in backyard was removed and reinstalled by respondent. Turn has yet to have infill material applied to it. Respondent states this is because he is waiting on finishing the low voltage lighting at the north end of the turf (addressed in compliance item no. 3). There is also a seam line in the turf. Respondent shall correct seam line and infill turf by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - Low voltage lighting throughout media center, bar.

• 13 ledge lights for table and bar

• 2 spotlights

• 16 grass lights

Investigator’s Observation: Respondent acknowledges this work is pending. Respondent shall complete per contract by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - Front and back of media center doors and under the bar area doors;

Investigator’s Observation: Per all parties, the doors referenced in this allegation are not the correct type and are covered in mortar/cement. Additionally, the wine/beverage seller is missing the feet required to be installed per the manufacturer. Respondent shall correct per contract and manufacturer's installation instructions by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - • Replace couplings on new conduit and painting of conduit;

Investigator’s Observation: At inspection I was informed the only remaining issue is lack of paint on the conduit at the southwest corner of the backyard. Respondent shall paint conduit per contract by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 8 - Polishing the marble throughout and re-grout where

indicated;

Investigator’s Observation: Marble surfaces in the backyard are missing grout in some areas and surface of the marble appears to have mortar, epoxy, and/or other small bits of construction materials on the surface.

Respondent acknowledges marble needs to be polished to remove some of this material. Respondent shall address missing grout and polishing the marble by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 9 - Seal on the TV lift

Investigator’s Observation: Media center has a TV lift installed, and the weather-stripping at the base of the lift appears to be coming apart/failing.

Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 10 - Workmanship flaws - Grill has an opening; grouting on the patio floor, several rock area voids;

Investigator’s Observation: Right side of the BBQ where the Traeger grill is installed is unfinished - there is a hole in the stucco which needs to be finished. Grill is fit snug inside the island, complainants are unable to use the cover for the grill. Regarding rock area voids, this is in reference to voids in travertine and stacked stone veneer throughout the backyard which appear to be missing adequate mortar or additional veneer pieces. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 13 - Our patio table has concrete splashed on it.

Investigator’s Observation: Concrete splatter was observed on patio table. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 14 - We supplied a misting hose to be installed in the pergola but the Trillium team lost the hose

Investigator’s Observation: All parties confirm that complainants supplied a misting hose to respondent for installation at a pergola (which has since been removed from the scope of work to be performed by respondent).

Respondent acknowledges this was lost and needs to be replaced. Respondent shall address by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 17 - Secure final electrical inspection and obtain green tag from City of Peoria

Investigator’s Observation: Peoria permit no. 2107231 has been issued and is pending electrical corrections to pass final inspection. The city inspector's comments indicate much of the electrical work to be corrected concerns work performed by respondent, however, some electrical outlets and other work has been performed by other contractors hired directly by complainants (as detailed in other allegations). Respondent is not responsible for the work performed by other contractors. Additionally, respondent is not listed as the licensed professional for this permit (permit shows CRC Construction, ROC 306947). Respondent is responsible to address any and all issues related to work performed by respondent specifically, but is not responsible for electrical work performed by other contractors and is not responsible for securing final approval from the local jurisdiction as respondent is not the licensed professional assigned to the permit. Respondent shall correct any of their deficient electrical work by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

Compliance Item: 19 - Replace chipped floor tiles/pavers.;

Investigator’s Observation: Chips observed throughout pavers in backyard. Homeowners have identified areas of concern. Respondent shall address any chipped pavers by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 21 - Drains lines exposed on east side of the home

Investigator’s Observation: Respondent's authorized representative agreed to add this item to the complaint at the jobsite inspection, in lieu of having complainant's file an addendum for this issue. Respondent agreed to ensure drains at east side of the home were adequately covered. Therefore, respondent shall address this issue by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 22 - Corner piece at southeast corner needs to be corrected

Investigator’s Observation: Respondent's authorized representative agreed to add this item to the complaint at the jobsite inspection, in lieu of having complainant's file an addendum for this issue. Parties discussed the corner piece and respondent agreed to address this issue per complainant's request. Therefore, respondent shall address this issue by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 23 - Travertine at southwest corner of the home isn't

sloped.

Investigator’s Observation: Respondent's authorized representative agreed to add this item to the complaint at the jobsite inspection, in lieu of having complainant's file an addendum for this issue. Neither party contests the pavers are level and respondent agreed to address this issue. Therefore, respondent shall address by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

(All errors contained in the original)

On June 1, 2022, Investigator Edwards completed a Compliance Jobsite Inspection. Investigator Edwards noted the following:

Compliance Jobsite General Notes:

Present at inspection was Robin Cook-Palmer, complainant. Respondent did not send a representative to take part in this inspeciton.

. . .

Compliance Findings:

At compliance inspection the following observations were made:

• Compliance item no. 1 – Respondent has removed the decorative strips, however, the areas behind the strips are unpainted and require stucco corrections, which have not yet been done.

• Compliance item no. 2- This item appears resolved

• Compliance item no. 3- This item is unresolved and the work appears to be in the same condition observed at initial JSI

• Compliance item no. 5- This item is unresolved and the work appears to be in the same condition observed at initial JSI

• Compliance item no. 6 – This item is unresolved and the work appears to be in the same condition observed at initial JSI

• Compliance item no. 8 – Attempts to fill and sand marble do not meet standards, most areas in same condition observed at initial JSI, whereas other areas have had new construction materials added which remain unsanded and exhibit and unprofessional appearance

• Compliance item no. 9 - This item is unresolved and the work appears to be in the same condition observed at initial JSI

• Compliance item no. 10- Grill opening at right side of the grill (at grease bucket) has been stucco’d since initial JSI; unable to substantiate whether this area was to have stone veneer, and this item appears partially resolved. The remaining issues relevant to this allegation are incomplete and many areas still at issue re: missing grout, mortar and veneer pieces, and grill space being too tight to fit the cover.

• Compliance item no. 13- This item is unresolved and it appears no action has been taken by respondent to correct

• Compliance item no. 14- This item is unresolved and it appears no action has been taken by respondent to correct

• Compliance item no. 17- Relevant building permit pulled by another licensed contractor is currently expired. Not currently able to verify whether any necessary electrical work has been corrected and no subsequent inspections with the local jurisdiction have occurred since initial JSI.

• Compliance item no. 19- Item is unresolved, most areas are in the same condition observed at initial JSI, whereas other areas have had some sort of filler material applied which does not meet minimum standards of workmanship.

• Compliance item no. 21 – Drain lines have been covered and this work appears to meet minimum standards of workmanship.

• Compliance item no. 22 – This item appears to have been resolved.

• Compliance item no. 23 – The work relevant to this allegation was found to meet the minimum standards of workmanship.

Respondent has addressed items 2, 21, 22 and 23. Unable to substantiate a violation or confirm work still at issue for compliance item no. 17. The remaining items in the directive are still at issue and not resolved as of compliance inspection.

(All errors contained in the original)

On June 20, 2022, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); and A.R.S. § 32-1154(A)(22).

On or about June 24, 2022, Respondent timely submitted an Answer to the Registrar.

On or about July 12, 2022, a Notice of Hearing was issued setting a hearing on August 17, 2022 at the Office of Administrative Hearings, an independent state agency.

After a continuance, the hearing was held on September 22, 2022.

At hearing, Investigator Edwards testified as to his involvement and the above timeline.

Investigator Edwards testified that he permitted additional time to complete the Directive as Respondent provided proof that there were delays in receiving some of the items which needed to be replaced.

Complainant testified on her own behalf as well as her witness Billy Chittester, and submitted five exhibits into evidence.

Complainant testified generally that the timelines were not adhered to, and what was to be a two to three month project still remained incomplete. Complainant testified however that as the hearing was proceeding, Respondent’s workers were present at the jobsite continuing to work on the Directive items.

Complainant testified that as to compliance item 1, the removal of the decorative strips left a mark and Respondent applied filled them in today, but she cannot verify the outcome.

As to compliance item 5, Complainant testified that the media center doors still have chemical stains, while other doors are cleaned and properly secured.

Complainant testified that as to compliance item 6, the conduit located in the southwest corner was still unpainted.

As to compliance item 8, Complainant testified that some progress was made to the marble, but it was not completed. Further, Respondent replaced the cracked marble but there was no epoxy coating on the same. Further, the television lift was still leaking and bowing and Complainant was concerned that because Respondent did not install the same correctly, that the 10 year warranty may have been voided.

Complainant testified that as to compliance item 10, this remained incomplete, as she could not fit the cover over her grill.

In addition, Complainant testified that Respondent had approximately 75 missed commitments, and that Respondent’s workers would correct an item but then break something else.

Respondent offered the testimony of Ruben Grajeda and Alex Grajeda, and offered three exhibits into evidence.

Mr. Grajeda testified that he ran into delays in obtaining materials due to supply chain issues. Mr. Grajeda also testified that while some items were not done correctly, but as of the date of the hearing everything would be completed, but for the painting on the conduit and waiting for the “green tag” on the electrical.

Administrative notice is taken of Respondent’s prior License record on October 6, 2022. Such prior License record reflects that Respondent’s License No. 327717 was first issued on February 13, 2020, and reflects that there is 1 open complaint, namely the present complaint.

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 Vazanno 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 Respondent’s work was not in conformity with the Registrar’s standards. Mr. Grajeda did not dispute that there were issues with the work performed. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established and Mr. Grajeda admitted that all of corrective work had not been completed following the Directive being issued, and that even at the time of hearing his workers were completing the project, but painting of the conduit still remained. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 327717 for a period of two days.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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.

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 30 days from the date of that certification.

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001

-137160-45720000Done this day, October 6, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Trillium Landscape LLC

1316 N Conner Ave

Gilbert, AZ 85234

[email redacted]

Robin Cook-Palmer

13417 W Evergreen Terr

Peoria, AZ 85383

[email redacted]

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001

-137160-45720000

By Miranda Alvarez

Legal Secretary