ALJDEC decisions subject to certification as final

2013A-2695-ROC · Registrar of Contractors · 2013-11-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 8, 2013 (record held open to October 19, 2013)

APPEARANCES: The Edge Remodeling, LLC appeared through Member Michael Labeda; the State of Arizona, Registrar of Contractors, was represented by Assistant Attorney General Michael Raine and ROC Chief of Licensing Lawrence Matthews.

WITNESSES: For Applicant: Michael Labeda Randy Appel

For the ROC: Lawrence Matthews, Chief of ROC Licensing

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

The Edge Remodeling LLC (“Applicant”) appeals the Arizona Registrar of Contractors’ (“ROC” or “Registrar”) denial of an application for a Class B-3 contracting license. The ROC based the denial upon finding that two of Applicant’s principals lack good character and reputation. The ROC found lack of good character and reputation based on alleged misrepresentations of material facts on Applicant’s application for licensure and other actions that the ROC alleges are violations of Arizona contracting law by several of Applicant’s principals. Applicant requested a hearing to show that Applicant is qualified for a license. This tribunal entered the application file received from the ROC into the record, along with marked Exhibits 1 through 9 from the ROC, and Applicant’s Exhibit A. The parties presented evidence and testimony from the witnesses listed above at the hearing. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommend Order finding that Applicant has not established that it meets the requirements for licensure as a contractor. FINDINGS OF FACT 1. On December 12, 2012, Applicant applied for a Class B-3 general residential remodeling and repair contracting license with the ROC.[1] On May 15, 2013, the ROC issued a letter denying the application (hereinafter “application denial letter”) for 12 listed reasons as follows: 1. Janae Marie Appel has failed to establish good character and reputation as required by A.R.S. § 32-1122.D.

2. Janae Marie Appel misrepresented a material fact in her application in contravention of A.R.S. § 32-1154.A.6 and § 32-1122.D.

3. Randy Lee Appel has failed to establish good character and reputation as required by A.R.S. § 32-1122.D.

4. Randy Lee Appel misrepresented a material fact in his application in contravention of A.R.S. § 32-1154.A.6 and § 32-1122.D.

5. Randy Lee Appel has failed to pay income taxes, withholding taxes or any tax imposed by Title 42, Chapter 5, Articles 1 and 4 and incurred in the operation of the licensed business as required by A.R.S. § 32-1154.A.4, 5 and A.R.S. § 32-1122.D.

6. Randy Lee Appel was convicted of a felony in contravention of A.R.S. § 32-1154.A.8 and § 32-1122.D.

7. The Edge Remodeling LLC advertised that they [sic] are a general contractor and able to perform contracting services in violation of A.R.S. § 32-1165.

8. Janae Marie Appel and Randy Lee Appel performed poor workmanship in violation of A.R.S. § 32-1154.A.3 (namely R4-9-108).

9. Randy Lee Appel performed work as an unlicensed contractor in violation of A.R.S. § 32-1151.

10. Janae Marie Appel and Randy Lee Appel aided, abetted and combined with unlicensed contractors in violation of A.R.S. § 32-1154.A.10.

11. Janae Marie Appel and Randy Lee Appel used a name other than the name set forth on their license in violation of A.R.S. § 32-1154.A.15.

12. Janae Marie Appel and Randy Lee Appel provided false[,] misleading[,] or deceptive advertising in violation of A.R.S. § 32- 1154.A.16.[2]

The specific facts upon which the ROC relies for the denial are explained in the next nine pages of the application denial letter, which is divided into sections concerning specific instances of conduct to support the above- listed allegations. 2. At hearing, the ROC withdrew Reason #6 above because the ROC had learned that the conviction upon which that finding was based was a misdemeanor that had been erroneously described as a class six undesignated felony by the criminal court. The court corrected that mistake on June 3, 2013.[3] Therefore, Reason #6 is not addressed further herein.[4] Background of Applicant, Janae Marie Appel, and Randy Lee Appel 3. The Application for Contractor’s License filed by Applicant in December 2012 lists four principals for the LLC: (1) Janae Marie Appel, (2) Randy Lee Appel, (3) Rodney William Weichelt, and (4) Michael Jeffrey Labeda. Randy Appel[5] is listed as the Manager and the other three are listed as Members. Janae Appel is the intended Qualifying Party for the license. Only the character of Janae Appel and Randy Appel is at issue in this case. 4. ROC records show that Randy Appel dba The Edge Custom Landscaping and Design was issued a Cease and Desist Order for unlicensed contracting by the ROC on November 12, 2003.[6] The order was based on a flyer that advertised services that required a licensed contractor. 5. On October 19, 2005, another Cease and Desist Order for unlicensed contracting was issued, this time to Randy Appel dba The Edge Pools.[7] Accompanying the order was a civil penalty of $2,000.00 for unlicensed contracting. The civil penalty was later reduced to $200.00 when R & D Appel LLC, whose principals were Janae Appel and Randy Appel, became licensed. Randy Appel paid that civil penalty in January 2006.[8] 6. On December 16, 2005, R & D Appel LLC obtained a Class B-5 general residential swimming pool contracting license, No. B-5.213782-R.[9] The principals on the license are Janae Appel and Randy Appel. The license is currently active and has never been disciplined.[10] 7. On September 16, 2007, R & D Appel LLC obtained a second license, a Class B-3 general residential remodeling and repair contracting license, No. B-3.237727-R. The license is currently active and has never been disciplined. 8. On January 26, 2010, Janae and Randy Appel filed a voluntary bankruptcy petition in United States Bankruptcy Court.[11] R & D Appel LLC was named as a co-debtor. On a list of “Taxes and Other Certain Debts Owed to Government Units” attached to the petition, the Appels listed tax amounts owed to the federal, state, and City of Chandler governments. They were granted a discharge from bankruptcy on May 5, 2010.[12] 9. On August 10, 2012, GWGS LLC obtained a Class B-3 general residential remodeling and repair contracting license, No. B-3.280021-R. Janae Appel is the Qualifying Party on the license and a Member of the LLC. The license is currently active and has never been disciplined. 10. On December 26, 2012, R & D Appel LLC dba Global Wide Green obtained a third license, a Class B-2 general small commercial contracting license, No. B-2.282384-C. Janae Appel and Randy Appel remain the principals of the LLC and are named on the license. Janae Appel is the Qualifying Party. The license is currently active and has never been disciplined. 11. On March 5, 2013, Randy Appel pled guilty to Criminal Damage, a class one misdemeanor and received a sentence of two years’ probation by the Maricopa County Superior Court.[13] Although the original Minute Entry from March 5, 2013, states that the criminal damage offense was a class 6 undesignated felony, a June 3, 2013 Minute Entry from the same court states that the designation of the offense was a clerical error and corrects it to reflect a misdemeanor.[14] The records submitted by the ROC do not show when the criminal matter was filed or how much time the matter was pending prior to March 5, 2013. Furthermore, it is not clear that the criminal matter was ever charged as a felony, since the felony designation was a clerical error and no other records have been provided. Alleged Misrepresentations on the Application (Reasons #2 and #4)[15] 12. On her portion of the application, completed in early December 2012, Janae Appel was asked in Question 22: “Have you ever been on a contractor’s license issued by Arizona or any other state?” She answered yes and referenced only that she has applied for a Nevada license that has not yet been issued. She disclosed no other licenses.[16] She also answered yes to Question 24: “Have you filed a petition for bankruptcy protection within the last 7 years under your individual name or on behalf of any business entity?”[17] Finally, she answered yes to Question 27: “Have you ever been delinquent in payment of any of the following: state or federal income taxes, payroll withholding, social security, unemployment or workers’ compensation?”[18] 13. As the evidence shows, Janae Appel was listed on three Arizona contracting licenses before December 2012. Therefore, her answer on Question 22 was correct, but incomplete. 14. On his portion of the application completed in early December 2012 Randy Appel was asked in Question 22: “Have you ever been on a contractor’s license issued by Arizona or any other state?” He answered no.[19] Also, he answered no to Question 24, concerning bankruptcy, no to Question 27 concerning payment of taxes, and no to Question 26: “Have you been convicted of a felony or have a felony charge pending?”[20] 15. The evidence shows that Randy Appel’s answers to Questions 22, 24, and 27 were not correct. His answer to Question 26, based on the evidence presented, was correct. Alleged Failure to Pay Taxes (Reason #5) 16. The Appels’ bankruptcy petition shows that they owed taxes to the federal government, Arizona state government, and City of Chandler in January 2010.[21] The record also shows that, as of April 9, 2012, all state income, sales, and withholding taxes had been paid.[22] There is no evidence confirming the payment of federal or Chandler City taxes. 17. At hearing, Lawrence Mathews, Chief of Licensing for the ROC, testified that the failure to pay taxes was only relevant to the truthfulness of Randy Appel’s answer for Question 27 on the application.[23] This is inconsistent with the application denial letter, which appears to allege that the failure to pay taxes is, by itself, a ground to find a lack of good character and reputation.[24] Mr. Mathews further testified that failing to pay taxes, by itself, is not a ground for denying a license.[25] Alleged Unlawful Advertising (Reason #7) 18. On March 11, 2013, the ROC discovered a website known as “theedgeremodeling.com.” On that site, Applicant presented itself to the public as “one of the Valley’s premier general contractors” that could do any remodeling job “regardless of size.”[26] Although Applicant presents itself on the website as a licensed general contractor, it did not have a license at that time. The website does not display any ROC license number. 19. Applicant’s witnesses testified at hearing that the website was put up because they assumed that the application at issue here, filed in December 2012, would go through without a problem. The witnesses admitted that the website should not have been up until Applicant was licensed and testified that it was taken down as soon as they were notified that the license was denied. Alleged Poor Workmanship (Reason #8) 20. The ROC application denial letter is not clear as to what facts constitute the basis for the allegation that Janae and Randy Appel have performed poor workmanship.[27] However, referenced in the application denial letter as the support for the allegation are several ROC complaints. These complaints are addressed as follows, in the order that they are mentioned in the application denial letter. Complaint No. 2010-[number redacted] 21. ROC Complaint No. 2010-[number redacted] was filed, according to the application denial letter, by Janae and Randy Appel against an unlicensed company named Green Planet Biz LLC. Only a few portions of the complaint file have been submitted in Exhibit 9, and these relate to the ROC’s allegation based on finding #10 that the Appel’s aided and abetted an unlicensed contractor. Therefore, the complaint against Green Planet Biz LLC is addressed below under that heading. 22. ROC Complaint No. 2010-308473856does not support an allegation of poor workmanship. Complaint No. 2011-7019 23. Although ROC Complaint No. 2011-7019 is mentioned by number in the application denial letter, no documents from that complaint have been provided on the record in this matter. In addition, the two paragraphs describing the complaint make no mention of poor workmanship. The application denial letter states that the complaint was filed by the Appels against Greenovated Energy LLC. It would be absurd to conclude from that complaint that the Appels alleged poor workmanship against themselves or one of their businesses. 24. ROC Complaint No. 2011-7019 does not support an allegation of poor workmanship. Complaint No. 2011-7173 25. ROC Complaint No. 2011-7173 is provided in Exhibit 7. That complaint is an abandonment complaint against Greenovated Energy LLC and does not alleged poor workmanship. Neither is there any evidence that a Corrective Work Order (“CWO”) was issued in that case, which would indicate poor workmanship had been found by an ROC Inspector. 26. ROC Complaint No. 2011-7173 does not support an allegation of poor workmanship. Complaint No. 2012-5559 27. ROC Complaint No. 2012-5559 is a complaint against R & D Appel LLC dba Global Wide Green. Although the complaint alleges poor workmanship, there is no evidence that an inspection was performed and a CWO issued in that case, which would indicate poor workmanship had been found by an ROC Inspector. In addition, the case was closed without any findings being made. 28. ROC Complaint No. 2012-5559 does not support an allegation of poor workmanship. Complaint No. 2013-114 29. Finally, ROC Complaint No. 2013-114 is another complaint against R & D Appel LLC dba Global Wide Green. Although the complaint alleges poor workmanship on the installation of a solar system, an inspection was performed that found no workmanship problems with the installation or equipment. A CWO was never issued in that case, which would indicate poor workmanship had been found by an ROC Inspector. In addition, on July 17, 2013, the ROC issued a letter closing the complaint, stating that there was “insufficient evidence to warrant the issuance of a Citation.” 30. ROC Complaint No. 2013-114 does not support an allegation of poor workmanship. Workmanship Summary 31. In summary, there is no evidence in this record to support an allegation that the Appels have engaged in poor workmanship and thereby lack good character and reputation. Alleged Unlicensed Contracting (Reason #9) 32. The allegation that Randy Appel lacks good character and reputation because he has engaged in unlicensed contracting is supported by the two Cease and Desist Orders that were issued and the civil penalty that he paid, as described above. These unlicensed contracting activities took place in 2003 and 2005, before Randy Appel was named on three licenses issued by the ROC: R & D Appel LLC, Class B-5 (No. B-5.213782-R); R & D Appel, LLC, Class B-3 (No. B-3.237727-R); and R & D Appel dba Global Wide Green, Class B-2 (No. B-2.282384-C). Alleged Aiding and Abetting of Unlicensed Contracting (Reason #10) 33. The ROC alleges in the application denial letter that the Appels engaged in aiding and abetting an unlicensed contractor by the name of Green Planet Biz LLC (“Green Planet”). The ROC bases its finding on documents filed by the Appels when they made an ROC complaint against Green Planet in 2010 (No. 2010-[number redacted]). Two documents from that complaint have been entered as Exhibit 9. One is a letter from Janae Appel describing how she was a bookkeeper for Green Planet. The other is a letter from Randy Appel describing how he was an investor in Green Planet and was to oversee installations that would be done by subcontractors. 34. There is no record of the ROC ever issuing a license to Green Planet or its principal Dariusz Bialowas. The activities described in the letters from the Appels would constitute aiding and abetting an unlicensed contractor, but there is no evidence that a Cease and Desist Order was issued by the ROC to Green Planet. Therefore, there has been no finding that Green Planet has operated as an unlicensed contractor, which is a necessary precursor to an aiding and abetting claim. 35. The ROC also alleges in the application denial letter that the Appels also engaged in aiding and abetting an unlicensed contractor by the name of Greenovated Energy (“Greenovated”). The ROC bases this finding on two ROC complaints, one filed by the Appels against Greenovated (No. 2011- 7019) and one filed by Paul and Theresa Jamtgaard against Greenovated (No. 2011-7173). Complaint No. 2011-7019 36. As noted above, Complaint No. 2011-7019 is briefly described in the application denial letter, but there are no documents from that complaint provided. Therefore, not only is it not possible to verify the description of the compliant, the record is silent as to the outcome of the complaint. So, once again, there is no evidence that Greenovated was issued a Cease and Desist Order or was found guilty of unlicensed contracting in that case. Complaint No. 2011-7173 37. ROC Complaint No. 2011-7173 was filed by others against Greenovated. In that case, a Cease and Desist Order was issued on March 2, 2012, by the ROC to Greenovated. However, there were no findings made as to the Appels’ conduct. During the investigation, there was evidence that might have led to a charge by the ROC against Randy Appel for aiding and abetting an unlicensed contractor, but such charges have not been brought and proven. The investigation results raised cause for bringing a complaint against Randy Appel and R & D Appel LLC but they do not provide a basis for making a finding by preponderance of evidence that a violation occurred. 38. There has been no finding, through complaint and hearing, that the Appels or the entities that they are associated with have engaged in aiding and abetting unlicensed contracting. The information provided is mere allegation that has not been properly processed to a conclusion that carries sufficient weight to find that the Appels engaged in that activity. Alleged Use of Improper Name (Reason #11) 39. The ROC alleges in the application denial letter that Green Planet’s contracts used “the Appel’s [sic] license number 237727.” There is no evidence in the record that supports that statement. Alleged False, Misleading, or Deceptive Advertising (Reason #12) 40. Based on the website discussed above in Findings of Fact 18 and 19, the application denial letter alleges that Applicant and the Appels falsely advertised themselves as a licensed contractor. Exhibit 6 supports that allegation, as it portrays Applicant as a general contractor capable of doing any remodeling project. Furthermore, false, misleading, or deceptive advertising is grounds for suspension or revocation of a license if done by a licensed contractor. Summary 41. The Administrative Law Judge finds that there are insufficient factual bases for the following allegations: • that Randy Appel’s answer to Question 26 on the application was a misrepresentation (part of Reason #4) • that Janae and Randy Appel performed poor workmanship (Reason #8) • that Janae and Randy Appel aided and abetted unlicensed contractors (Reason #10) • that Janae and Randy Appel used an improper name (Reason #11)

For all other Reasons on the list, the ROC has submitted evidence sufficient enough to be considered in determining whether there is lack of good character and reputation. CONCLUSIONS OF LAW 1. Applicant must show that it meets the qualifications for licensure.[28] One of those qualifications is that persons named on a license be persons of good character and reputation.[29] By statute, lack of good character and reputation may be established by showing (1) that a person has engaged in contracting without a license, or (2) that a person has committed any act that, if committed by a licensee, would be grounds for disciplinary action against a licensee, or (3) that a person has been named on a contractor’s license that was suspended or revoked in another state.[30] In this case, the ROC has shown lack of good character and reputation for Janae and Randy Appel, but not by establishing all ten reasons alleged in the application denial letter. The evidence only establishes some of those allegations. Alleged Misrepresentations on the Application (Reasons #2 and #4)[31] 2. The first alleged misrepresentation on the application submitted by Applicant is based on Janae Appel’s answer to Question 22, which asked her about being named on other contractor’s licenses. She answered the question correctly (“Yes”) but did not list the Arizona licenses on which she is named. The Administrative Law Judge does not conclude that this is misrepresentation, but rather an incomplete answer. The answer was not false; it was incomplete. While an incomplete answer can be misleading, this one was not because it appears to be a mere mistake or oversight that did not cause a false impression. The other licenses that she is association with were in good standing at the time and she would have no incentive to hide the information. Additionally, all other information on that part of the application was complete and accurate. Thus, her error indicates a mistake and not misrepresentation. 3. Her answer to Question 22 on the Personal Information (Qualifying Party) portion of the application is the only allegation of misrepresentation against Janae Appel. Given the determination that her error was a mistake, the Administrative Law Judge concludes that Janae Appel did not misrepresent a material fact on her portion of the application. 4. On the other hand, Randy Appel’s answers to Questions 22, 24, and were clearly incorrect and, therefore, misrepresented the truth. Whether intentional (as the ROC argues) or negligent (as Applicant argues), such misrepresentations are unacceptable.[32] To an extent, the ROC relies on licensees to be honest and careful when interacting with the agency. It is an important aspect of regulation of the industry. Mistakes happen, but Randy Appel’s multiple incorrect answers to important questions on the application were more than mere mistakes. 5. Janae Appel did not make any misrepresentations on the application. 6. The evidence shows that Randy Appel misrepresented material facts on his portion of the application. Therefore, the ROC has shown lack of good character and reputation for Randy Appel based on Reason #2. Alleged Failure to Pay Taxes (Reason #5) 7. The evidence shows that the Appels failed to pay taxes in 2010. Because Randy Appel represented on the application that he had paid taxes when he had not, his answer was not truthful. As noted, Lawrence Mathews testified that this allegation is not an independent ground to deny licensure in this case. Therefore, this allegation has been considered only in conjunction with the truthfulness of Randy Appel’s answer to Question 27 on the application. That conduct has been considered only with regard to Reason #4. Reason #5 is not being used independently in this case; therefore, this ground, by itself, does not support a finding of lack of good character and reputation. Alleged Unlawful Advertising (Reason #7) 8. The evidence shows that Applicant advertised itself as a contractor briefly on the internet without first obtaining a license. This conduct constitutes engaging in contracting without a license as prohibited by A.R.S. § 32-1151. It also is a basis for showing lack of good character and reputation. 9. The evidence supports Reason #7. Alleged Poor Workmanship (Reason #8) 10. The evidence presented does not show that Randy Appel and Janae Appel have engaged in poor workmanship. Alleged Unlicensed Contracting (Reason #9) 11. Although the record shows that Randy Appel engaged in unlicensed contracting in 2003 and 2005, the ROC has since issued three licenses to two entities with which he is associated. To deny another license on this ground at this point in time is arbitrary, capricious, and an abuse of discretion. Alleged Aiding and Abetting of Unlicensed Contracting (Reason #10) 12. The evidence presented does not show that Randy Appel and Janae Appel aided and abetted unlicensed contracting. Alleged Use of Improper Name (Reason #11) 13. The evidence presented does not show that Randy Appel and Janae Appel have used an improper name. Alleged False, Misleading, or Deceptive Advertising (Reason #12) 14. The evidence presented shows that Randy Appel and Janae Appel have engaged in false, misleading, or deceptive advertising. Summary—Lack Good Character and Reputation 15. There are several grounds established by the evidence that rebut the statutory presumption of good character and reputation for Randy and Janae Appel. These include Randy Appels’ misrepresentations on his application (this is a major factor), the Appels’ failure to pay taxes, unlawful advertising, and false, misleading, or deceptive advertising. Taking these into consideration, the evidence as a whole shows lack of good character and reputation for Randy Appel and Janae Appel. 16. Applicant has not shown that it meets the requirements for licensure. RECOMMENDED ORDER IT IS RECOMMENDED that the Registrar of Contractors deny the application of The Edge Remodeling, LLC.

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 5 days from the date of that certification.

Done this day, November 8, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 2. [2] Hereinafter, these twelve reasons for denial will be referred to as “Reason #” with the number from the list above following. [3] Exhibit 5. [4] Whether Randy Appel had a pending felony charge when he signed the December 2012 application is a related issue that will be addressed with regard to his answer on the application concerning any pending felony charges. See Findings of Fact 11 and 15 below. [5] Middle names are henceforth not stated. [6] Exhibit 8. [7] Id. [8] Id. [9] Administrative notice is taken of information on the ROC’s public website as of August 23, 2013, for all license history information in this decision. [10] The license history shows several administrative suspensions for non- renewal and lack of bond, but these are not disciplinary actions. A suspension occurred in March through July 2009 according to the history portion of the license information screen (case M08-0861), but this was apparently not a disciplinary suspension because the complaint portion of the license history shows that the license has not had any disciplinary actions against it. [11] Exhibit 4. [12] Exhibit 2 at 33. [13] Exhibit 5. [14] Id. [15] Reasons #1 and #3 are the ultimate issues in this case: Whether Janae Appel (#1) and Randy Appel (#3) are of good character and reputation. Lack of such qualities can be established by showing that the person “has engaged in contracting without a license or committed any act that, if committed or done by any licensed contractor, would be grounds for suspension or revocation of a contractor's license or by showing that the person was named on a contractor's license that was suspended or revoked in another state.” A.R.S. § 32-1122(D). So, even though there are 12 reasons listed, ten of those reasons are the basis for the ROC’s claim that Janae and Randy Appel lack good character and reputation. [16] Exhibit 2 at 2. [17] Id. [18] Id. [19] Exhibit 2 at 3. [20] Id. [21] Exhibit 4. [22] Exhibit 2 at 7. [23] 8/8/13 Hearing Record at 0:29:40-0:30:00. [24] The Administrative Law Judge finds that the application denial letter, as a whole, is poorly drafted and confusing. [25] “The fact that taxes are delinquent is not, in and of itself, a basis for denying a license application.” 8/8/13 Hearing Record at 0:29:20- 0:29:30. [26] Exhibit 6. [27] In this regard, it lacks sufficient notification to Applicant concerning the factual basis of the “poor workmanship” allegation. [28] Arizona Revised Statutes (A.R.S.) § 41-1092.07(G)(1). [29] A.R.S. § 32-1122(D). [30] Id. It is important to note that lack of good character and reputation must be established by a “showing” of one or more of the three circumstances above. This means that, while the ultimate burden of persuasion rests on an applicant, there is a rebuttable presumption that an applicant has good character and reputation. The ROC must rebut that presumption by showing that one or more of the three circumstances exist for concluding lack of good character and reputation. [31] The only answers specifically alleged to be misrepresentations in the application denial letter are the answer to Question 22 (other licenses) for Janae Appel and the answers to Questions 22 (other licenses), 24 (bankruptcy), and 25 (felony charges or conviction) for Randy Appel. Although answers to other questions were presented by the ROC at the hearing, they were not charged as misrepresentations in the application denial letter and will not be addressed herein. [32] Perhaps an incorrect answer on one question could be considered a mistake, depending on the question, but here there were numerous incorrect answers.

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