ALJDEC - Licensing

2023A-13082-CHC-ROC · Registrar of Contractors · 2024-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rachelle Faas,

COMPLAINANT

Jesus Edgar Padilla

DBA: PadMar Wrought Iron

License No. ROC 332924,

RESPONDENT

No. 2023A-13082-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 6, 2024

APPEARANCES: Complainant Rachelle Faas appeared via Google Meet. Jesus Edgar Padilla appeared via Google Meet. Registrar of Contractors Investigator Mark Nipp appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-15 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

Jesus Edgar Padilla. (Respondent) is the holder of License No. 332924 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 31, 2023, Rachelle Faas (Complainant) agreed to have Respondent install a RV gate and smaller gates around her home as well as construction of three pergolas.

On or about November 15, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mark Nipp. The jobsite inspection was performed on December 11, 2023.

Investigator Nipp then issued a written directive on or about December 26, 2023, 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 January 17, 2024.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item #1: Exterior metal gates (rear wall and RV panels) are unfinished, dented, scratched, not powder coated or painted.

Investigator’s Observation: Verified

The Respondent agreed the gate frame and panels were dented/scratched and agreed that he would replace any damaged components.

I saw the gates were not painted/powder coated and appeared to have an uneven primer coat only. I saw that all the panels/frame components were dented and scratched.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 2-5

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #2: Interior door hinges were used so the integrity is poor.

Investigator’s Observation: Verified

The Respondent agreed that the hinges were “Home Depot interior hinges.” The Respondent stated he has used these hinges for years on exterior gates and they have never failed. The Respondent agreed to replace the hinges if the Complainant wanted him to.

I saw the hinges were interior door hinges (appeared to be brass). I researched the Home Depot interior hinges and noted that the manufacturer recommends they be used in interior applications. Interior and Exterior hinges have similar load ratings; however, they differ in their ability to withstand corrosion from exposure to the elements.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 3, 5

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #3: Rear awning is structurally unsafe and unsecure. Bolts/brackets used instead of welds.

Investigator’s Observation: Verified

Both parties agreed that the brackets had been bolted and not welded as agreed.

The Respondent stated that he had been waiting on a decision from the Complainant regarding the height of the pergola and had bolted the brackets temporarily until he received the final decision.

The Complainant disagreed with the Respondent’s statement regarding the height and stated they had told him how high to build the pergola.

I saw there were multiple brackets that had been bolted to the pergola. The brackets were rough cut sections of flat steel. Although it is not improper to bolt brackets, both parties agreed they were to be custom cut and welded.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 6-11

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #5: Roof is bent, loose, and missing panels.

Investigator’s Observation: Verified

Both parties agreed that the roofing material (corrugated metal) was bent/damaged in multiple locations.

The Respondent stated he would replace the damaged panels.

I saw there were multiple damaged pieces of the corrugated metal roofing.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 12-16

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #6: The bolts going into the footers are exposed and look unfinished.

Investigator’s Observation: Verified

Both parties agreed the pavers had already been installed when the Respondent installed the post and that another contractor poured the footer.

The Respondent stated that he might have forgotten to tighten one bolt and that he thought it would hold just fine.

I inspected the attached patio cover and noted that the post was mounted to the footer with four (4) bolts through the post plate. However, I saw that one bolt had threads exposed beneath the post plate and the corresponding nut could be easily turned by hand.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 17-18

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #7: The supports are not mounted and can be removed with no effort as they are just sitting on the wall.

Investigator’s Observation: Verified

I saw that the rear pergola supports were not attached in any way and could be easily removed.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 19-20

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R4-9-108(B); in part, A contractor shall perform all work in accordance with any applicable building codes and professional industry standards...a contractor shall use such skills, prudence, and diligence in performing and completing tasks...

Compliance Item #8: Awning attached to rear of home is poorly attached Structure supports were only placed on one side, welds are not completed, and roofing won’t support the foam and tongue and groove.

Investigator’s Observation: Verified

The Respondent stated he used 3/8” x 4” Lag Bolts to attach the rear patio cover to the house.

I saw that the rear patio cover was attached to the house in four (4) locations using brackets on one side of each structural member. Two (2) brackets had two (2) bolts while the other two (2) brackets only had one (1) bolt each.

I saw that the vertical posts were only welded on two (2) sides and some were tacked only on the remaining sides. The full structural strength is not attained unless the joints (post to rafter) are welded on all four sides.

The Complainant should provide the Respondent with all associated plans, specs, and engineering in order to allow the Respondent to correct this appropriately.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 18, 21-29

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #10: All metal was not powder coated, rusting, and looks unfinished. Causing rust to stain new travertine that was just installed.

Investigator’s Observation: Verified

The Complainant explained they believed the rust was the result of drip edge material that the Respondent had placed on the pavers (under rear pergola). They showed me the drip edge material.

I saw there was a linear rust stain on the pavers beneath the pergola. I inspected the drip edge material and noted it was painted galvanized material and had no visible rust on it. This type of material is not prone to corrosion and is likely not the cause of the rust stain.

I inspected the linear rust stain in relation to the pergola, which had rusted material on it. However, it did not seem likely that the rust stain could have been cause by water run-off from the pergola.

I inspected the steel components and noted that many had not been painted or powder coated and were rusting.

The International Organization for Standardization (ISO) 12944-5:2019 – Paints and varnishes – Corrosion protection of steel structures by protective paint systems-part 5 states in its foreword, “Unprotected steel in the atmosphere, in water and in soil is subjected to corrosion that may lead to damage. Therefore, to avoid corrosion damage, steel structures are normally protected to withstand the corrosion stresses during the required service life required of the structure.”

There was Insufficient Evidence to determine what caused the rust stain on the pavers or who was responsible.

There is no written contract; however, the Complainant provided email communications between the parties that clearly indicate the Respondent was responsible for painting/powder coating the steel components.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 30-31

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

(All errors contained in the original)

On February 20, 2024, Investigator Nipp conducted a Compliance Jobsite Inspection. Investigator Nipp then noted the following, in pertinent part:

Compliance Findings:

Compliance Item #1: Exterior metal gates (rear wall and RV panels) are unfinished, dented, scratched, not powder coated or painted.

Compliance Jobsite Inspection Conducted on 02/20/2024 @ 10:30

Investigator’s Observation: Verified – Respondent Did Not Comply

I saw that the gate frames/panels had been painted; however, the paint was splotchy and uneven, with different sheens and uneven coverage.

I saw that there were rust stains running vertically on the inside panels of the RV gate.

I saw that the gate frames still had dents and scratches on them.

The Respondent’s corrective work does not meet the acceptable minimum workmanship standards.

CJSI Reference Picture(s) 1-6, 25-27

. . .

Compliance Item #2: Interior door hinges were used so the integrity is poor.

Compliance Jobsite Inspection Conducted on 02/20/2024 @ 10:30

Investigator’s Observation: Resolved

Both parties reached an agreement to resolve this compliance item while at the CJSI.

CJSI Reference Picture(s) 6-7

. . .

Compliance Item #3: Rear awning is structurally unsafe and unsecure.

Bolts/brackets used instead of welds.

Compliance Jobsite Inspection Conducted on 02/20/2024 @ 10:30

Investigator’s Observation: Corrected by the Respondent

The Complainant stated the Respondent corrected this item and they are satisfied with the result.

CJSI Reference Picture(s) 8

. . .

Compliance Item #5: Roof is bent, loose, and missing panels.

Compliance Jobsite Inspection Conducted on 02/20/2024 @ 10:30

Investigator’s Observation: Corrected by the Respondent

The Complainant stated the Respondent corrected this item and they are satisfied with the result.

CJSI Reference Picture(s) 8-9

. . .

Compliance Item #6: The bolts going into the footers are exposed and look unfinished.

Compliance Jobsite Inspection Conducted on 02/20/2024 @ 10:30

Investigator’s Observation: Corrected by the Respondent

I saw the nut on the bolt appeared to be tight. The Respondent’s corrective work appears to meet the acceptable minimum workmanship standards.

CJSI Reference Picture(s) 10

. . .

Compliance Item #7: The supports are not mounted and can be removed with no effort as they are just sitting on the wall.

Compliance Jobsite Inspection Conducted on 02/20/2024 @ 10:30

Investigator’s Observation: Corrected by the Respondent

The Complainant stated the Respondent corrected this item and they are satisfied with the result.

CJSI Reference Picture(s) 11-13

. . .

Compliance Item #8: Awning attached to rear of home is poorly attached

Structure supports were only placed on one side, welds are not completed, and roofing won’t support the foam and tongue and groove.

Compliance Jobsite Inspection Conducted on 02/20/2024 @ 10:30

Investigator’s Observation: Corrected by the Respondent

The Complainant stated the Respondent corrected this item and they are satisfied with the result.

CJSI Reference Picture(s) 14-17

. . .

Compliance Item #10: All metal was not powder coated, rusting, and looks unfinished. Causing rust to stain new travertine that was just installed.

Compliance Jobsite Inspection Conducted on 02/20/2024 @ 10:30

Investigator’s Observation: Verified – Respondent Did Not Comply

I saw that the frames and panels had been painted. However, The Complainant noted that there was significant overspray to include the stucco, travertine pavers, and interlocking concrete pavers. The Complainant also stated there was significant construction debris left by the Respondent.

I saw there were black paint drops and overspray throughout the travertine under the steel structures the Respondent built/painted. I also noted there was significant overspray on the synthetic stucco at each location the Respondent attached metal to the house and perimeter walls.

I saw there were a large number of washers and screws laying under all structures the Respondent constructed.

I asked the Respondent about the overspray and construction debris and he replied that the washers and screws were from they removed the old metal roofing, although they had thrown the used washers and screws away. The Respondent claimed that the Complainant must have taken the washers/screws out of the trash and spread them around the property. The Respondent further stated that he believed the Complainant may have painted their own house to make it look like overspray.

The Respondent’s work was sloppy and demonstrated a disregard for the quality of his work. The overspray damage is extensive and may have ruined the travertine pavers. The house is finished in a synthetic stucco which is not normally painted because the color is imbedded within the stucco material.

After the CJSI, the Respondent emailed me, indicating he was mailing printed copies of text messages between him and the Complainant. That evidence will be reviewed if/when it is received.

CJSI Reference Picture(s) 18-33

On February 22, 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).

On or about March 7, 2024, Respondent e-mailed an Answer to the Registrar.

On or about March 19, 2024, a Notice of Hearing was issued setting a hearing on May 6, 2024, at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Nipp testified as to the Registrar’s involvement and the above timeline.

Complainant testified on her own behalf. She testified generally, that there were numerous issues, but agreed with Investigator Nipp that Compliance Items 1 and 10 remained incomplete.

Complainant also testified that she did not paint nor take out screws and bolts to ensure that Respondent was not in compliance with item 10.

Further, Complainant testified that the house was built as a primary residence but was currently being used as a rental property.

Respondent testified that the paint overspray was not his doing and that he ensured that all construction debris was removed because he was worried about complaints from Complainant.

As to item 1, the gate work, Respondent testified that he replaced the sheet metal., and that a coat of paint would correct the vertical rust stains.

Mr. Alain testified that items 13, 22 and 25 were no longer at issue.

Administrative notice was taken of Respondent’s prior License record on May 21, 2024. Such prior License record reflected that Respondent’s License No. 332924 was first issued on April 7, 2021, and reflected that there was one open case, namely the present complaint. The record reflected that there was also one “Resolved/Settled Case(s)”.

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 Respondent’s work was not in conformity with the Registrar’s standards. Further, there was no real dispute from Respondent regarding the same. 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 Respondent failed to complete the corrective work following the Directive being issued. The greater weight of evidence demonstrated that the gate in item 1 was not adequately completed as there was still visible rust and dents/scratches on the gate. Further, there was a significant amount of overspray and some debris still left over in reference to item 10. 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. 332924 for a period of two days.

It is further recommended that the Registrar require Respondent to pay the sum of $200.00 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 21, 2024.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Rachelle Faas

rfaas22@gmail

Jesus Edgar Padilla

[email redacted]

By: OAH Staff