ALJDEC - Licensing
2024A-13017-CHC-ROC · Registrar of Contractors · 2025-05-05
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Lisa Garitty,
COMPLAINANT,
v.
Borges Painting LLC
License No. ROC 334796,
RESPONDENT.
No. 2024A-13017-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 14, 2025 at 9:00am
APPEARANCES: Complainant Lisa Garitty appeared on her own behalf with Wayne Garitty, Complainant Witness. Gabriel Borges on behalf of Borges Painting LLC. Mike Wiskow, Arizona Registrar of Contractors Investigator.
ADMINISTRATIVE LAW JUDGE: Nicole Robinson
EXHIBITS ADMITTED INTO EVIDENCE: Arizona Registrar of Contractors Notice of Hearing Packet (“Packet”); Complainant Exhibits.
FINDINGS OF FACT
Borges Painting LLC (“Respondent”) is the holder of License No. ROC 334796 issued by the Arizona Registrar of Contractors (“Registrar”). Respondent’s License ROC 334796 is a C-34 Painting and Wall Covering license. This classification allows the licensee to perform surface preparation to install, apply or repair: (1) Wallpaper, (2) Wall covering cloth, (3) Wall covering vinyl, (4) Decorative texture, (5) Paint, and (6) Liquid floor and wall coatings.
On or about September 25, 2024, Lisa Garitty (“Complainant”) entered into a contract with Respondent for, among other things, a remodel of a detached garage into a casita. The project was at Complainant’s residential home located in Phoenix, Arizona which was classified as a historic home. The contract did not include an advisement that Complainant had the right to file a complaint with the Registrar.
The total amount of the project was $30,000 and the work began on September 30, 2024. Complainant paid out $24,000 to Respondent. Respondent stopped work on the project on or about November 9, 2024.
On or about November 24, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work and abandonment with respect to the project.
The Registrar assigned the complaint to Investigator Mike Wiskow. After a jobsite inspection, Investigator Wiskow issued a Written Directive to Respondent on January 30, 2025 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 Friday, February 14, 2025.
RESTRICTIONS
You may not perform or hire other contractors to perform work that is outside the scope of your license.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 1 – Plumbing & Sewer questionable as to weather it was done to code and correct.
Investigator’s Observation: Confirmed. The plumbing DWV and water supply are not properly completed. After a permit is obtained, a properly licensed plumber should complete the plumbing per plans and specification by appropriate means.
. . . .
Complaint Item: 2 – Framing walls not secured to the foundation. Doors and windows do not appear to be framed correctly.
Investigator’s Observation: Confirmed. The framing is not properly completed. The sole plate needs to be treated. The exterior walls should be straight and have a proper sole plate. The corners are not properly framed with sheetrock backer. The windows are not properly framed as the openings are parralelogramed. After a permit is obtained, a properly licensed framing contractor should complete and repair the framing by appropriate means.
. . . .
Complaint Item: 3 – No bottom plate along the exterior walls for securing sheet rock & trim molding. No dead wood for sheet rock.
Investigator’s Observation: See allegation #2.
. . . .
Complaint Item: 4 – Some corners do not appear to be framed correctly.
Investigator’s Observation: See allegation #2.
. . . .
Complaint Item: 5 – The front wall appears to be ready for stucco the windows have not been installed & waterproofed prior to the prep work.
Investigator’s Observation: Confirmed. The windows are not installed and there is no weatherproofing on the building. After a permit is obtained, a properly licensed contractor should complete and repair the windows and waterproofing by appropriate means.
. . . .
Complaint Item: 6 – Electrical work may not be up to code. They have a pipe running in the ground and is only 6” deep not 18”.
Investigator’s Observation: Confirmed. The electrical line to the building is in an open trench and not deep enough. After a permit is obtained, a properly licensed electrical contractor should complete and repair the electrical to and in the building by appropriate means.
. . . .
Complaint Item: 7 – The electrician will not come back due to not being paid by my contractor.
Investigator’s Observation: See allegation #6.
. . . .
All errors are in original.
After the deadline in the directive expired, Investigator Wiskow was notified that no corrective work had been performed.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(2)(b); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; Ariz. Rev. Stat. § 32-1154(A)(16); and Ariz. Rev. Stat. § 32-1154(A)(22).
Hearing Evidence
Investigator Wiskow testified that Respondent was a painting contractor and had no authority to take on this project. Investigator Wiskow further testified that there was no worth in offering any kind of extension to the Written Directive deadline and the best way to move forward would be for Respondent to refund Complainant the money paid so far. Complainant would need to hire properly licensed contractors to obtain any necessary permits to finish the job because Respondent was not licensed to hire subcontractors. The work on this project included plumbing, framing, and electrical work which required a permit and properly licensed contractors to perform that work.
In Respondent’s Answer, it was alleged that Complainant did not want to “get the city involved” because of the cost of permits and Respondent moved forward anyway. Investigator Wiskow testified that “[l]icensed contractors should know that they are not allowed to proceed without a permit if one is required. So the proper response for that should have been I can’t proceed.”
Complainant testified that her and her spouse, Mr. Wayne Garitty, lived outside of the state of Arizona and they trusted their realtor who referred Respondent to them for this project. Complainant testified that she did not “do my due diligence” to vet Respondent. Complainant was beyond concerned but became “very worrisome” when Respondent purchased the incorrect bathtub and broke up cement to accommodate the wrong bathtub which led to a crack in the slab which led her to file the Complaint.
Mr. Gabriel Borges testified on behalf of Respondent that he was not aware he could not subcontract work on the project. Mr. Borges testified that he subcontracted with a licensed electrician on this project and subcontracted with a plumber and framer but did not realize they were not licensed. Mr. Borges testified that he believed there were already permits for the structure because plumbing and electrical were already present. In regards to the contract, Mr. Borges admitted that he needed to add element #9 to his contract language.
Administrative notice is taken of Respondent’s prior License record on April 14, 2025. Such prior License record reflects that Respondent’s License No. 334796 was first issued on September 16, 2021, and is Active. Such prior License record also reflects no prior 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 means “[p]roof which leads the trier of fact to find that the existence of the contested fact is more probable than its nonexistence.”
In regards to the citation regarding a lack of permit, testimony was provided at the Tribunal that there must have been existing permits because electrical and plumbing already existed in the structure. However, the existence of a prior or new permit was not provided to Investigator Wiskow nor was it provided at the time of hearing. As such, the evidence established that Respondent did not complete the project in accordance with the applicable building code in a manner that was prejudicial to Complainant. Therefore, Complainant established that Respondent departed from the applicable building code in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(b).
The photographs provided in evidence show the utter lack of care and destruction to this structure which clearly did not live up to a level of professionalism and skill that this project required. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
Respondent’s contract was thorough but it missed one element. As such, the evidence established that Respondent’s contract failed to include the required elements of a contract set forth in Ariz. Rev. Stat. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of Ariz. Rev. Stat. § 32-1154(A)(12).
In this case, it is convincingly clear that the type of license issued to Respondent by the Registrar, a C-34 Painting and Wall Covering license, should not have taken on this type of project nor is Respondent a general contractor, hence, it should not have subcontracted out any work. Complainant admitted that she did not perform her due diligence into Respondent’s license, however, as a license holder with the Registrar, Respondent should have known what it could and could not do within the scope of its own license. As such, the evidence established that Respondent knowingly contracted beyond the scope of the license or licenses of the licensee in violation of Ariz. Rev. Stat. § 32-1154(A)(16).
Finally, the evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. ROC 334796 for a period of three days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with Ariz. Rev. Stat. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.
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 5, 2025.
/s/ Nicole Robinson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Mike Wiskow
[email redacted]
Lisa Garitty
3701 MARIETTA ST
Chalmette, LA 70043
[email redacted]
Borges Painting LLC
13210 N A Street
El Mirage, AZ 85335
[email redacted]
By: OAH Staff