ALJDEC - Licensing

2023A-04064-CHC-ROC-RHG · Registrar of Contractors · 2025-03-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brendon Cothrun,

COMPLAINANT,

Liberty Landscapes, LLC

License No. ROC 318035,

RESPONDENT.

No. 2023A-04064-CHC-ROC-RHG

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 7, 2024, with further hearing on March 5, 2025

APPEARANCES: Complainant Brendan Cothrun appeared with his wife, Christine Cothrun for the October 7, 2024 hearing, however, did not appear for the March 5, 2025 further hearing. Paul Levine, Esq. represented Respondent Liberty Landscapes, LLC. Noel Ortiz appeared on behalf of Respondent Liberty Landscapes, LLC. Arizona Registrar of Contractors Investigator Robert Di Alto appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice taken of Agency Record; Respondent Liberty Landscapes, LLC’s Exhibits 1, 2, 5, 6, 8, 9, 15

Procedural History

On October 25, 2023, at 9:00 a.m., the hearing in the above-captioned matter convened pursuant to a Notice of Hearing issued by the Arizona Registrar of Contractors (“Registrar”) on September 11, 2023. Brendon Cothrun (“Complainant”) appeared on his own behalf. Paul Levine, Esq. represented Liberty Landscapes, LLC (“Respondent”). Noel Ortiz was present on behalf of Respondent. Investigator Robert Di Alto appeared as a witness.

The parties presented opening statements. Investigator Di Alto provided his testimony. It was ascertained during the course of Investigator Di Alto’s testimony that he inadvertently pencil cited A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-109, which concerns “Name of Licensee or Applicant,” rather than citing Respondent for a violation of A.A.C. R4-9-108, which concerns “Workmanship Standards.” Investigator Di Alto testified that Respondent did not violate A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-109. Because Respondent was not charged with a violation of the Registrar’s workmanship standards, any alleged deficiencies in Respondent’s workmanship were outside the scope of the administrative hearing due to the fact that Respondent was not properly noticed that such would be the subject of the administrative hearing. Consequently, the only charged violation that was within the scope of the hearing was A.R.S. § 32-1154(A)(22).

During Complainant’s testimony, he wanted to address workmanship deficiencies, which were outside the scope of the hearing.

Respondent’s counsel made a motion to dismiss the charge of A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-109. Complainant’s response to the motion was a request to dismiss the entire filed Complaint so that he could file a new complaint incorporating all of Respondent’s alleged workmanship deficiencies, resulting in a new inspection and appropriately charged violations of the State’s contracting laws.

In light of Complainant’s request, the hearing was vacated and remanded to the Registrar for further action.

On July 2, 2024, the Registrar issued a Notice of Hearing setting this matter for a rehearing on August 13, 2024, at 9:00 a.m. On the date and time set for hearing, Complainant appeared on his own behalf, with his wife, Christine Cothrun. Paul Levine, Esq. represented Respondent. Investigator Di Alto appeared as a witness.

Prior to the commencement of the August 13, 2024 hearing, Mr. Levine informed the Tribunal that Respondent’s principal had a family medical emergency and was unable to participate in the hearing. Mr. Levine requested a continuance of the hearing. Under the circumstances, Complainant did not object to a continuance of the hearing.

The hearing was continued to October 7, 2024, at 1:00 p.m. Complainant, Mrs. Cothrun, Mr. Levine, Mr. Ortiz, and Investigator Di Alto were present. The hearing proceeded, however, due to the inability to conclude the hearing in the allotted time, the matter was set for a further hearing on January 8, 2025, at 1:00 p.m. The further hearing was thereafter continued at the request of Respondent’s counsel, and ultimately re-convened on March 5, 2025, at 1:00 p.m. However, Complainant did not appear for the further hearing notwithstanding proper notice and a grace period having been provided. Complainant did not contact the Office of Administrative Hearings to indicate any cause for the absence or delay and did not request a continuance of the further hearing. The further hearing proceeded in Complainant’s absence with Mr. Levine and Mr. Ortiz present.

FINDINGS OF FACT

Respondent is the holder of License Number 318035 issued by the Registrar. Mr. Ortiz is Respondent’s qualifying party and member.

In or about early 2023, Complainant entered into a series of contracts to encompass a landscape remodel that included installing a putting green and the remodel of a fire pit.

On or about April 5, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Di Alto. Investigator Di Alto conducted a Jobsite Inspection on May 24, 2023. Following the Jobsite Inspection, on July 13, 2023, Investigator Di Alto issued a Written Directive 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 08/07/2023.

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

Complaint Item: 8) The putting green needs to have at least 1/2" of sand removed. There is way too much sand on that surface as is and also sand all throughout the fringe. The hack job in certain areas needs to be redone as there should not be visible cut out turf everywhere. The fringe should also align with the new steps you installed which is yet another detail issue that we are finding throughout the projects. There should have been crushed granite under entire surface which allows for proper drainage. Maybe this is why the cups are filling up with water which is totally unacceptable? I was also told the fringe areas will need to be pulled up and recompacted. You need to use ENVIROFILL which is the industry standard today in lieu of the sand. Also should be copper slag on fringe.

I would also need to confirm exactly what kind of roller you intend to use? AZ Luxury Lawns quoted me 13K for that green that I paid you 30K to do. It needs to be done right! I have attached the link for the Envirofill product which regardless of manufacture recommendations is what ALL the pro's are using such as Celebrity Greens and AZ Luxury Lawns,etc.

Investigator’s Observation: I was not able to identify the base or sub base materials that were installed due to the putting green being installed prior to this jobsite inspection.

I was not able to verify the allegation that the Respondent did not use Envirofill or did not install crushed granite under the entire surface of the putting green. I reviewed the proposal and Envirofil is not specified in the proposal. No further action is required by the Respondent for the above described complaint items.

I also observed what appeared to be an excessive amount of sand on the surface of the putting green. It appears that the putting green has not had a final roll for compaction or had a final brushing performed.

Additionally, I observed the Complainant fill several putting green cups up with a garden hose, waited approximately 15-20 minutes and they appeared to hold water.

The Complainant provided an email dated 04/05/2013 confirming that the Respondent is aware that the Putting Green is not complete, and requires a final cutting of the turf and a final rolling to get the green to roll faster. He also provided an email dated 04/14/2023 confirming the Respondent had scheduled to brush, infill, compact and roll the green on 047/17/2023 and that he would also correct the cup drainage issues.

The Respondent shall complete the above complaint items, as per the contract/proposal and by the appropriate means. Exclusions: The Respondent providing and installing Envirofil materials and providing and the installation of crushed granite under the entire putting green surface.

The following complaint items require no action by the Respondent:

Complaint Item: 1) Remove, fix or refund the lighting installation that continues to blink and stay on all night.

Investigator’s Observation: Complainant did not demonstrate lighting issues or provide evidence or documentation to support the allegation. No action required by the Respondent. The complainant also stated that he was going to have a different contractor come and assess the lighting later that day. No further action required by the Respondent.

Complaint Item: 2) Fix the irrigation on the bed next to the pool and remove the spaghetti lines and replace with working emitters that match what was installed in the other beds.

Investigator’s Observation: Unable to verify, the complaint item was completed prior to this job site inspection. No further action required by the Respondent.

Complaint Item: 3) Move rocks around the newly installed plants that are suffocating them. I have asked you about this at least 3 times but nothing has been done.

Investigator’s Observation: Complainant stated that he had his Gardner pull rocks away from the plants to address this complaint item prior to this JSI. No further action required by the Respondent.

Complaint Item: 4) Remove the mulch that was installed in front of the negative edge that doesn't match the existing mulch.

Investigator’s Observation: The complaint item was completed prior to this job site inspection. No further action required by the Respondent.

Complaint Item: 5) Check and fix all emitters on front bed that are not working. I turned some off on the barrels that don't need to get drenched with water but my landscaper said some of those plants are not getting any water and they don't want to touch them understandably.

Investigator’s Observation: The complaint item was completed prior to this job site inspection. No further action required by the Respondent.

Complaint Item: 6) Install the cactus in the original proposal in the front. I am also not happy with the quality of the larger plants you chose as they all have blemishes which I was told is also unacceptable. There are some 20 flowers that need to bel replaced and that irrigation needs to be redone to ensure they are getting water as I am having to constantly hand water the flowers. We are not happy with the placement of many of the plants in both front and back as some are crowded and others have too much spacing which is why I asked to be part of the design process to approve of them prior to planting (which did not happen).

Investigator’s Observation: The Registrar does not have jurisdiction over plants or trees. Additionally the Complainant did not provide a landscape or hardscape plan or additional evidence or documentation to support the allegations. No further action required by the Respondent.

Complaint Item: 7) The firepit is pretty much a disaster as the top of one side is over 1" taller than the other side. The finish they did does not match ANYTHING else on the property and needs to be redone to match existing stucco.

Investigator’s Observation: I observed some height variation of approximately 3⁄4”- 1”+, in the height of the backrest, at the fire pit seating area. The finish coat of the stucco is rough in nature and is inconsistent with other structures. However after reviewing the Proposal dated 02/23/2023, a specification for stucco finish is not provided. The complaint item meets minimum workmanship standards. No further action required by the Respondent.

All errors in original.

After the expiration of the Written Directive, on August 11, 2023, Investigator Di Alto ascertained that Respondent had not performed any corrective work. The matter was thereafter referred to the Registrar’s Legal Department for the issuance of a Citation.

Prior to the originally scheduled hearing date, Investigator Di Alto conducted a prehearing inspection on October 5, 2023, and ascertained that Respondent had not performed any corrective work.

As set forth above, the originally scheduled hearing was vacated due to an inadvertent, erroneous citation.

Thereafter, Complainant contacted the Registrar to request that the Complaint be re-opened and Investigator Di Alto was instructed to re-open the Complaint.

Complainant requested that his complaint item regarding the stucco texture be revisited by Investigator Di Alto.

On April 25, 2024, Investigator Di Alto issued an Amended Written Directive to Respondent as follows:

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

Investigator’s Observation: I was not able to identify the base or sub base materials that were installed due to the putting green being installed prior to this jobsite inspection.

Additionally, I observed the Complainant fill several putting green cups up with a garden hose, waited approximately 15-20 minutes and they appeared to hold water.

Investigator’s Observation: Verified. I observed some height variation of approximately 3/4”+, in the height of the backrest, at the fire pit seating area. The finish coat of the stucco is rough in nature and is inconsistent with other structures. Upon reviewing new evidence submitted by the Complainant, it appears the specification for stucco finish is was to be smooth. The Respondent shall correct by the appropriate means.

All errors in original.

Investigator Di Alto did not have any contact with Respondent after the issuance of the Amended Written Directive. After the expiration of the Amended Written Directive, Investigator Di Alto ascertained from correspondence with Complainant that Respondent had not performed any corrective work.

Thereafter, the matter was referred to the Registrar’s Legal Department for the re-issuance of a Citation. On May 29, 2024, 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).

Investigator Di Alto testified that after the Complainant was re-opened and prior to issuing the Amended Written Directive, he did not conduct a Jobsite Inspection and instead, utilized the photographs he took at the previous Jobsite Inspection conducted on May 24, 2023, and the October 5, 2023 prehearing inspection.

Investigator Di Alto testified consistently with the findings contained in the Amended Written Directive and referenced several of the photographs contained in the Agency Record of which Administrative Notice was taken. Investigator Di Alto testified that the stucco finish on the fire pit seating is not smooth, but rather has a rough texture. Investigator Di Alto testified that the parties’ contract documents specify a “smooth” finish. Investigator Di Alto testified that he did not find any workmanship deficiencies as to the elevation or height of the fire pit seating.

Regarding the putting green, Investigator Di Alto testified that there was excess sand on the green and that the gaps between the fringe and the wall exceeded half an inch and were “very poorly done.” Investigator Di Alto further testified that the seam is visible. However, neither the gaps nor the seam were ordered to be addressed in the Amended Written Directive. Investigator Di Alto acknowledged that he is not familiar with any standards for the drainage of cups on a putting green. Investigator Di Alto filled two cups with a hose and the water dissipated three quarters to one inch in the time he was present which was less than an hour.

Complainant testified that the deficiencies with the fire pit seating “are visually obvious,” that the sand issue on the putting green is ongoing, and that putts do not roll straight. Complainant testified that Respondent re-stuccoed and painted the entire fire pit wall.

Mr. Ortiz testified that the document provided by Complainant to Investigator Di Alto and upon which Investigator Di Alto relied when he amended the Written Directive to include a smooth texture on the fire pit, was actually in reference to an outdoor fireplace, not the fire pit. They are two separate structures at different locations and the fireplace called for a smooth stucco finish. The fire pit renovation did not specify a stucco finish. Consequently, Investigator Di Alto amended the Written Directive based upon erroneous information provided by Complainant.

Mr. Ortiz explained that Respondent was contracted to remove a portion of the back of the seating area of the fire pit, stucco the area that had the top removed, patch, prime, and paint. Respondent patched and stuccoed to match the pre-existing texture. Respondent was not contracted to re-stucco the entire bench seating. Respondent performed its work pursuant to the terms of the parties’ contract. Respondent entered into evidence numerous photographs depicting the fire pit before, during, and after completion of its work.

Regarding the putting green, Mr. Ortiz testified that he has installed between 150 and 200 of them, and that at the time of Complainant’s installation, he had installed between fifty and sixty putting greens. Mr. Ortiz testified that Respondent installed six to seven pounds of sand per square foot pursuant to manufacturer specifications. Mr. Ortiz explained the process of installing the silica sand and its purpose. Mr. Ortiz explained that the more sand installed, the smoother and faster a golf ball will roll. Once sand is removed, the speed of the green will slow.

Mr. Ortiz testified that Respondent removed some of the sand as required by the Written Directive, using a power broom, brushing out some of the sand, and re-rolling the green which resulted in a slower green. Mr. Ortiz testified that the sand should not have been removed, however, he was required to so do to comply with the Written Directive. Respondent submitted into evidence photographs illustrating the removal of the sand.

Mr. Ortiz credibly testified that Respondent addressed the drainage issue with all of the cups, as well. Respondent submitted photographs depicting the corrective work to the cups.

Administrative notice is taken of Respondent’s prior License record on March 10, 2025. Such prior License record reflects that Respondent’s License Number 318035 was first issued on February 9, 2018, and is expired. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled complaints, and one complaint resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is: “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Pursuant to A.R.S. § 32-1154(D), ”[t]he expiration, cancellation, suspension or revocation of a license by operation of law or by decision and order of the registrar or a court of law or the voluntary surrender of a license by a licensee does not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such a licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such a license.”

A.R.S. § 32-1154(A) provides:

The holder of a license or any person named on a license pursuant to this chapter may not commit any of the following acts or omissions:

. . . .

3. Violation of any rule adopted by the registrar.

. . . .

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. . . .

A.A.C. R49108(A) provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar neither demands nor expects perfection from a licensee on the licensee’s first attempt at work. A licensee must be given a reasonable opportunity to remediate workmanship issues prior to the imposition of discipline against its license.

Regarding the Registrar’s charge of poor workmanship, the credible evidence of record established that Respondent removed some of the sand from the putting green and repaired the drainage of the cups, notwithstanding the Investigator’s admission that he knew of no drainage standards for cups. Further, the credible evidence of record established that Respondent installed the sand per manufacturer specifications and that the removal of sand resulted in a slower green. Regarding the stucco finish of the seating at the fire pit, the credible evidence of record established that Investigator Di Alto ordered corrective work based upon inaccurate information supplied by Complainant, and that a smooth finish for the fire pit was not specified. Therefore, Complainant failed to establish that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

Regarding Respondent’s alleged failure to comply with the Written Directive, the Administrative Law Judge concludes based on the credible, probative, and substantial evidence presented at hearing that Respondent complied with the Amended Written Directive in regard to the sand on the putting green and the drainage of the cups. As to the stucco on the fire pit seating, The Administrative Law Judge concludes that this item was erroneously verified by Investigator Di Alto based upon inaccurate information provided by Complainant. Therefore, Complainant failed to establish 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).

There was no substantial evidence adduced showing that Respondent was unscrupulous, unqualified, or financially irresponsible, and Complainant failed to demonstrate by a preponderance of the evidence that Respondent violated the charged provisions of this State’s contracting laws. Consequently, based on the credible and probative evidence presented at hearing, it would not be fair or just to impose discipline against Respondent’s license and it is appropriate to dismiss this matter.

RECOMMENDED ORDER

It is recommended that the Registrar dismiss Complaint Number 2023-04064 against Respondent.

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, March 17, 2025.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by e-mail to:

Tom Cole

Registrar of Contractors

c/o Legal Department

[email redacted]

Paul M. Levine, Esq.

[email redacted]

Brendon Cothrun

[email redacted]

By: OAH Staff