ALJDEC - Licensing
2023A-07571-OMC-LS-ROC · Registrar of Contractors · 2023-09-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arizona Registrar of Contractors,
COMPLAINANT.
v.
Wrangler Construction LLC
License No. ROC 320980,
RESPONDENT.
No. 2023A-07571-OMC-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 18, 2023
APPEARANCES: Assistant Attorney General Wesley Cox appeared on behalf of the Arizona Registrar of Contractors. No one appeared on behalf of Respondent Wrangler Construction, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On July 17, 2023, the Arizona Registrar of Contractor (Registrar) issued a Notice of Hearing (NOH) setting the above-entitled matter for hearing on August 18, 2023. The NOH provided that the Registrar alleged that Respondent had a person name on its license, who was named on another license in Arizona that was revoked for activity that occurred while the person was named on the other license, in violation of Arizona Revised Statutes (A.R.S.) section 32-1154(A)(20).
The July 17, 2023 NOH further provided:
You must attend this hearing. This is an adversarial hearing before an administrative law judge, and is conducted in a similar manner as judicial proceedings. Thus, you must be prepared to present evidence, including witness testimony and documents, in support of your case.
.................................................................................
Because Respondent is a licensee and is charged with an act(s) or omission(s) that is cause for the suspension or revocation of a license, Respondent is a party to this case and will be a party to the hearing.
Because Complainant alleged Respondent committed an act(s) or omission(s) that is cause for the suspension or revocation of a license, Complainant is a party to this case and will be a party to the hearing.
Respondent and Complainant, as the parties to the hearing, will present evidence and argument to the administrative law judge.
A hearing was held on August 18, 2023. At hearing, the Registrar presented the testimony of Robert Sterling, the Registrar’s Assistant General Counsel, and West Ellington, an Investigator for the Registrar. The Registrar submitted Exhibits 1 through 10.
No one appeared on behalf of Respondent at the hearing on August 18, 2023. No one filed a request to appear telephonically on behalf of Respondent. Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Respondent through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.
Wrangler Construction LLC (Respondent) currently holds License
No. 320980, a B-4 General Residential Engineering Contractor license issued July 6, 2018. See Exhibit 3.
The B-4 General Residential Engineering Contractor license scope “includes the B-5... sub-classification.” A.A.C R4-9-103. The B-5 license is a General Swimming Pool Contractor license, which allows licensees to “construct and repair swimming pools and spas.”
David Michael Lake is the sole owner and qualifying party for License
No. 320980. See Exhibit 3.
Mr. Lake is also the sole owner and qualifying party for License No. 265621, a KA-5 Dual Swimming Pool Contractor license, which license was issued to Lakeside Pools LLC (Lakeside) on July 9, 2010. See Exhibits 3-5.
Mr. Lake has been the sole owner and qualifying party of Lakeside License no. 265621 since its licensure on July 9, 2010. See Exhibits 3-5.
The Registrar is currently investigating the following seven complaints that were filed jointly against Respondent and Lakeside:
a. Case Nos. 2023-007585 and 2023-00769, filed by Maria Beans;
b. Case Nos. 2023-07858 and 2023-05300, filed by David Magoc;
c. Case Nos. 2023-07859, 2023-07590 and 2023-07013, filed by Sheryl McCalman;
d. Case Nos. 2023-07597 and 2023-07082, filed by Vince Parnell;
e. Case No. 2023-07226, filed by Allen Mullinex; and
f. Case Nos. 2023-007599 and 2023-07561, filed by Victor Hutchings.
g. Case No. 2023-07625 and 2023-07580, filed by Teon Gudina
The Registrar has received dozens of complaints against Lakeside’s
license in 2023, other than the seven complaints against both Respondent and Lakeside.
A summary of the status of most of these Lakeside only complaints as of July 11, 2023, was as follows:
a. 2 Discipline Imposed, Revocation;
b. 15 citations issued awaiting answer; and
c. 17 pending citation or under investigation.
13. Additionally, the Registrar opened four other complaints against Lakeside during from about July 1, 2023 to July 11, 2023.
14. The allegations in these Lakeside complaints include abandonment, poor work, and nonpayment.
15. Complainant 2023-07383, filed by Truly Landscape and Construction LLC, is pending against Lakeside for failure to pay subcontractors or material suppliers in violation of A.R.S. § 32-1154(A)(10).
16. On August 2, 2023, the Registrar revoked Lakeside’s license for failure to pay subcontractors or material suppliers in violation of A.R.S. § 32-1154(A)(10), based on complaint 2023-07015. See Exhibit 9, ROC 204-205.
17. On August 7, 2023, the Registrar revoked Lakeside’s license for failure to pay subcontractors or material suppliers in violation of A.R.S. § 32-1154(A)(10), based on complaint 2023-07055. See Exhibit 9, ROC 210-211.
18. The following complaints have been filed against Lakeside with an answer
due:
a. 2023-03082, filed by Adam D’Anthony;
b. 2023-03765, filed by Terri Marquardt;
c. 2023-03891, filed by Edward Woelfle;
d. 2023-05597, filed by Daniel Meyer;
e. 2023-06539; filed by Carole Ellenberger;
f. 2023-06668, filed by Jeffrey Rose;
g. 2023-06695, filed by Ida Frueh;
h. 2023-06751, filed by Chad LaValley;
i. 2023-06841, filed by Edward Richards;
j. 2023-06848, filed by Marisa Liepman;
k. 2023-06955, filed by Mary Graham;
l. 2023-06980, filed by Randall Bjork;
m. 2023-06981, filed by Ashley Sturtz;
n. 2023-07079, filed by Robert Cooley; and
o. 2023-00233, filed by Dave Aisenault.
19. The following complaints have been filed against Lakeside and are pending citation, or, are under investigation:
a. 2023-06054, filed by Steven Schroder;
b. 2023-06647, filed by Melissa Muddell;
c. 2023-07000, filed by Laura Ann Johnson;
d. 2023-07040, filed by Brian Schroeder;
e. 2023-07054 and 2023-07065, filed by Barbara Kringle;
f. 2023-07134 and 2023-07137, filed by Lawrence Weisgerber;
g. 2023-07213, filed by Patti Shake;
h. 2023-07369, filed by Nancy Lindfors;
i. 2023-07431, filed by Mark Westhues;
j. 2023-07520, filed by Rosanne Oltman;
k. 2023-07551 and 2023-07554, filed by Mark Habermann;
l. 2023-07568, filed by Albert Curry;
m. 2023-07669 and 2023-07670, filed by Catherine Theresa Carlson; and n. 2023-07676, filed by Donna Krapf.
20. The standard contracts used by Lakeside in these complaints list both “Lakeside Pools LLC” and “Wrangler Construction LLC” as parties to the contract, with both license numbers. See Exhibit 6.
21. In a “Mutual Termination & Release Agreement” dated May 15, 2023, Lakeside Pools LLC/Wrangler Construction LLC are referred to as the “Company”.
See Exhibit 7. In addition to being under the complete control of Mr. Lake and him being the responsible qualifying party for both companies, this document provides further indication that the companies are effectively one and the same. See id.
22. On July 11, 2023, the Registrar revoked Lakeside’s KA-5 Dual Swimming Pool Contractor License No. 265621, for abandonment and failure to perform work in a professional and workmanlike manner in case no. 2023-06009, filed by Gerald Stock. See Exhibit 8, ROC 089-090.
23. On July 11, 2023, the Registrar issued a default order revoking Lakeside’s KA-5 Dual Swimming Pool Contractor License No. 265621, for abandonment in case no. 2023-05907, filed by Kristen Mackey. See Exhibit 9.
24. On July 11, 2023, the Registrar revoked Respondent’s license after concluding that Respondent had violated A.R.S. section 32-1154(A)(1) and (A)(3); Arizona Administrative Code R4-9-108(A). See Exhibit 10.
CONCLUSIONS OF LAW
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” See A.R.S. section 41-1092.07(G)(2).
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code section R2-19-119.
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
A.R.S. section 32-1154(A) provides that
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:
*****
Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” A.R.S. section 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
The undisputed evidence in this matter established that Mr. Lake is currently named on Respondent’s license as the sole owner and qualifying party, and was also named on Lakeside’s revoked License No. 265621 as the sole owner and qualifying party as the time of the acts or omissions that resulted in revocation. By being named on Lakeside’s License No. 265621 at the time that the acts and omissions resulting in revocation or suspension occurred, Respondent has violated A.R.S. section 32-1154(A)(20).
Consequently, Respondent’s license should be revoked.
ORDER
IT IS ORDERED that on the effective date of the final Order in this matter,
Wrangler Construction LLC’s license No. 320980 is revoked.
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, September 7, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Cindy Casaus, Interim Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Wesley M. Cox
Assistant Attorney General
Office of the Attorney General
Licensing & Enforcement Section
[email redacted]
Wrangler Construction LLC
7225 N 110th Ave
Glendale, AZ 85307
Email [email redacted]
By: OAH Staff