ALJDEC decisions subject to certification as final

2023A-00361-OMC-LS-ROC · Registrar of Contractors · 2023-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT,

v.

Floright Pump & Repair LLC

dba Floright Pump & Controls

ROC License No. 323619,

RESPONDENT.

No. 2023A-00361-OMC-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 01, 2023 at 9:00 AM.

APPEARANCES: Assistant Attorney General Seth Hargraves, Esq. appeared on behalf of the Arizona Registrar of Contractors (“Registrar”) with Robert Stirling and Robert Doenges as witnesses. Blake Wilkie, Esq. appeared on behalf of Floright Pump & Repair LLC (“Respondent”) with Joshua Whitford as a witness. Jennifer Whitford observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s license file as shown on the Registrar’s public website, on February 19, 2019 Respondent was issued ROC License No 323619 for General KA Dual Engineering. The license was suspended effective January 23, 2019. Joshua David Whitford is listed on the license as its Qualifying Party and Manager. Respondent’s address of record for the license is 3048 N. Cessna Ave., Ste. 3 Casa Grande, AZ 85122. The license has an active $24,000.00 surety bond issued through RLI Insurance Company, effective January 24, 2019. There is one open complaint against the license, which is presumed to be related to this matter. The license has no prior discipline history.

On January 18, 2023, an Order of Summary Suspension and Notice of Promptly Instituted Proceedings was issued against Respondent after an investigation by the Registrar revealed that the work history Mr. Whitford disclosed on Respondent’s application for licensure was fabricated. The Order set forth facts supporting the Registrar’s summary suspension regarding the aforementioned findings.

On January 23, 2023, a Supplemental Notice was issued that provided a statement of facts and alleged violations, and the Registrar’s requested relief.

Upon investigation, the Registrar substantiated the underlying allegations of lack of requisite experience and misrepresentation of a material fact against Respondent. Given the circumstances, the Registrar determined that the public health, safety or welfare imperatively required emergency action under Ariz. Rev. Stat. § 41-1092.11(B).

The Registrar set the hearing for February 01, 2021, at 9:00 a.m. before the Office of Administrative Hearings (“OAH”), an independent state agency, located in Phoenix, Arizona, to determine whether cause exists to uphold the summary suspension of Respondent’s license, and whether grounds exist for the Registrar to revoke Respondent’s licenses based on the following alleged statutory violations:

Charge 1: Ariz. Rev. Stat. § 32-1154(A)(5) – Misrepresentation of a material fact by the applicant in obtaining a license.

Charge 2: Ariz. Rev. Stat. § 32-1154(A)(19) – Subsequent discovery of facts that if known at the time of issuance of a license or the renewal of a license would have been grounds to deny the issuance or renewal of a license.

The Registrar was represented by Assistant Attorney General Seth Hargraves, Esq., who submitted Exhibits 1-6 and presented the testimonies of Robert Stirling, Assistant Chief Counsel for the Registrar and Robert Doenges, owner of Instrulink LLC. Respondent was represented by Blake Wilikie, Esq., who submitted Exhibits 1-3 and presented the testimony of Joshua Whitford.

Hearing Evidence

On an unknown date the Registrar received an anonymous tip that alleged Mr. Whitford did not have the experience required to have a KA contracting license.

As a result, the Registrar initiated an investigation into the confirmable facts regarding the allegation.

The Registrar began by reviewing Mr. Whitford’s application for licensure on behalf of Respondent, originally submitted January 24, 2019. The application reflects the following, in pertinent parts:

In Part 2: Qualifying Party section of the application, Mr. Whitford is listed as Respondent’s Qualifying Party and President.

Under the Relevant Experience subsection, Mr. Whitford listed prior work experience at Instrulink from August 17, 2013, through and until November 17, 2018, as a Project Manager/Field Technician, working 30 hours per week on average during his period of employment. (Emphasis in original.)

In his description of duties, Mr. Whitford offered “Managing projects start to finish, helped in installation of pumps, motors, electrical, panels and building upgrades for commercial [and] residential property.”

Under the Experience Reference subsection, Mr. Whitford listed Bryan Doenges as his former supervisor.

Mr. Whitford did not provide any other additional relevant experience on Respondent’s application for licensure. Per Mr. Whitford’s LinkedIn page, however, Mr. Whitford worked at Pivit Marketing, LLC and Verizon Wireless between 2013 and 2018.

In Part 6: Signatures section of the application, Mr. Whitford attested with his signature of January 24, 2019, that “By signing below, each person certifies that the entire contents of this License Application Form, including all supplementary statements and materials attached, are true and correct, and that this application is not submitted with the intent to evade Chapter 10, Title 32 of the Arizona Revised Statutes. A.R.S. § 32-1154(A)(9). It is a violation of A.R.S. § 32-1154(A)(5) to make a misrepresentation of a material fact in obtaining a license.” (Emphasis in original.)

On January 15, 2023, in response to the Registrar inquiry into Mr. Whitford’s prior employment and work experience, Bryan Doenges, using an @instrulink.com email handle, offered the following in pertinent parts:

Joshua Whitford never worked for me. [H]e never worked for us.

(Emphasis in original.)

The Registrar was referred to Instrulink owner Robert Doenges for more information.

Additional Evidence

Mr. Doenges testified that Mr. Whitford has never been employed by Instrulink or worked as an independent contractor.

Mr. Whitford testified that he had 9 to 10 years of experience in the industry, including employment at Pump Systems Inc. and Instrulink. Per Mr. Whitford, during his employment at Instrulink he was “paid under the table.” To that end, Mr. Whitford offered the following as paystubs from Instrulink:

A $3,000.00 Chase Quickpay® with Zelle® to Mr. Whitford from Bryan Doenges LLP on Wednesday, December 11, 2019, at 6:24 a.m. The memo line does not denote what the payment was for.

A $4,814.83 Chase Quickpay® with Zelle® to Mr. Whitford from Bryan Doenges LLP on Wednesday, December 11, 2019, at 4:08 p.m. The memo line notes “3000 to follow tomorrow.”

A $500.00 check dated Tuesday, February 27, 2018, to Mr. Whitford from Instrulink LLC. The memo line notes “Roadhaven.”

A $500.00 Chase Quickpay® with Zelle® to Mr. Whitford from Bryan Doenges LLP on Sunday, April 08, 2018, at 4:01 p.m. The memo line does not denote what the payment was for.

Mr. Whitford provided 3 undated purported letters of recommendation from Hyatt Regency, University of Arizona, and Arizona State University. Each letter, though nearly identical to the next, referenced Mr. Whitford’s unspecified alleged employment at Pump Systems and failed to mention any relation or affiliation with Instrulink. Though all 3 letters reference acquaintanceship with Mr. Whitford since 2015, none of the letters establish 4 cumulative years of work-related experience.

Since the Registrar’s suspension of Respondent’s license, Mr. Whitford has sustained financial hardship and Respondent’s customers have suffered from a lack of customer service.

Closing Arguments

In closing, Respondent conceded that sufficient information existed to warrant an investigation by the Registrar, but argued against the suspension of Respondent’s license pending a hearing on the underlying charges. Respondent denied posing a danger to the public and opined Mr. Whitford’s good character should warrant discernment from the Registrar. Thus, Respondent requested that the Registrar’s summary suspension of its license be lifted and placed back into active status pending the remainder of the Registrar’s investigation.

In closing, the Registrar argued that it had satisfied its burden of proof to establish that grounds existed to summarily suspend Respondent’s contracting license. The Registrar argued that Mr. Whitford’s failure to supplement or amend Respondent’s application for licensure evidenced that the only relevant employment or experience he relied on was from Instrulink, but that all credible evidence established no such employment or experience existed; as reflected by a lack of employment records, Mr. Whitford’s LinkedIn page, and Mr. Doenges’ testimony. Thus, the Registrar opined that because Respondent did not have the requisite experience for licensure, Respondent could not be permitted to operate with an active license and conduct business with the public. The Registrar asked that the summary suspension of ROC License No. 323619 be affirmed, pending proceedings for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(5) and (A)(19).

CONCLUSIONS OF LAW

These matters lie within the Registrar’s jurisdiction, and was properly brought before OAH.

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

The summarily suspended status of Respondent’s licenses does not deprive the Registrar of its ability to prosecute these complaints or prevent the Registrar from determining the merits of these complaints.

The Registrar bears the burden of proof to establish grounds for suspension or revocation of Respondent’s contractor’s license 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.”

Ariz. Rev. Stat. § 41-1092.11(B) provides, in pertinent part, that if an “[a]gency finds that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the agency may order summary suspension of a license pending promptly instituted proceedings for revocation or other action.”

Ariz. Rev. Stat. § 32-1154(A)(5) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “Misrepresentation of a material fact by the applicant in obtaining a license.”

Ariz. Rev. Stat. § 32-1154(A)(19) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “Subsequent discovery of facts that if known at the time of issuance of a license or the renewal of a license would have been grounds to deny the issuance or renewal of a license.”

The substantive evidence in this matter is clear.

It is clear that one of the requisites for General KA Dual Engineering licensure by the Registrar is a minimum of 4 years of hands-on and/or managerial experience. It is also clear that the only employment Mr. Whitford listed on Respondent’s application for licensure was Instrulink. The credible and relevant evidence of record establishes that while Mr. Whitford had a relationship with Instrulink, he was never employed by the company or supervised by Bryan Doenges. Because no other employment was listed on Respondent’s application for licensure, and no amendments or supplemental information was received by the Registrar from Mr. Whitford, it is unlikely or otherwise improbable that the Registrar would have issued ROC License No. 323619 to Respondent, as Respondent’s application was deficient on its face.

Thus, considering the nature of the underlying issue and the Registrar’s statutory duty to protect the public, more than ample cause exists to uphold the Registrar’s summary suspension of ROC License No. 323619 based on Respondent’s alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(5) and (A)(19). Public welfare imperatively required the Registrar’s swift emergency action in this matter.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to include all relevant work experience on its application for licensure, and/or timely submit one or more amendments/supplements to its application. These are affirmative defenses that Respondent bears the burden to establish. Here, Respondent failed to directly address the underlying reason(s), if any, Mr. Whitford did not disclose all of his relevant experience to establish 4 years of requisite experience. Thus, the record is devoid of mitigating facts to refute the Registrar’s credible evidence or justify Mr. Whitford’s conduct in this matter. Thus, Respondent’s burden has not been sustained.

While there is no evidence in the record to reflect that the public has suffered actual harm as a result of Respondent’s conduct, the record does establish grounds for the Registrar to take action to protect the public from an unqualified contractor.

Because the Registrar has established cause to summarily suspend Respondent’s license(s) under Ariz. Rev. Stat. § 41-1092.11(B), the Tribunal must affirm the Registrar’s Order of Summary Suspension issued against Respondent’s License No. 323619 as appropriate and in the best interest of the public.

RECOMMENDED ORDER

In light of the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter, the Registrar uphold the Order of Summary Suspension issued January 18, 2023, to Respondent Floright Pump & Repair LLC, ROC License No. 323619, pending proceedings for revocation or other action.

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 five days from the date of that certification.

Done this day, February 08, 2023.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors