ALJDEC decisions subject to certification as final

2011A-337-ROC · Registrar of Contractors · 2011-06-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 1, 2011 APPEARANCES: Royce Turner appeared personally. R M B Developments, L.L.C., doing business as Heat Guard Today, was represented by its authorized representative, Richard Brindisi. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. R M B Developments, L.L.C., doing business as Heat Guard Today (“Respondent”), is the holder of License No. 251324, a Class K-40 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Respondent is also the holder of License No. 259950, a Class K-5 contracting license issued by the Registrar. 3. On June 10, 2010, Royce Turner (“Complainant”) entered into a contract with Respondent for the purchase and installation of 2,600 square feet of Radiant Barrier Foil and a 10-watt gable fan at Complainant’s residence located in Bullhead City, Arizona. 4. Complainant paid Respondent a total price of $3,117.41. 5. Respondent installed the radiant heat barrier foil in Complainant’s attic. 6. Complainant filed a written Complaint with the Registrar alleging that the radiant heat foil product did not reduce Complainant’s electric bill as Respondent’s sales person, Gil Morgan, claimed it would do. 7. The Registrar designated Complainant’s Complaint as Case No. 2010- [number redacted] against Respondent’s License No. 251324 and Case No. 2011- 337 against Respondent’s License No. 259950. 8. The Registrar issued Citations and Complaints in Case Nos. 2010- [number redacted] and Case No. 2011-337 charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (2) and (16). 9. The Registrar forwarded Case Nos. 2010-[number redacted] and 2011-337 to the Office of Administrative Hearings, an independent agency, for a consolidated evidentiary hearing. 10. At hearing, Complainant presented evidence that his electrical bills did not reduce after Respondent installed the radiant heat barrier foil. 11. Energy Star is a joint program of the U.S. Environmental Protection Agency and the U.S. Department of Energy. 12. Respondent presented evidence that the radiant heat barrier foil has been approved by the Energy Star program as a product designed to limit the sun’s radiant heat by reflecting the heat back outside a structure. 13. There is also evidence that there are many other factors affecting energy consumption, such as “building orientation, occupant lifestyle and climate.”[1] 14. The evidence of record does not support a finding that Respondent deviated from any plans or specifications, or that it failed to comply with local building code requirements. 15. The evidence of record does not support a finding that Respondent deceived Complainant about the performance of the installed radiant heat barrier foil. The parties’ contract, which is a written Job Work Order, does not state any claims about the product’s performance. Mr. Morgan is now deceased. Respondent cannot know what claims Mr. Morgan made to Complainant. Further, Respondent presented documentary evidence to support the product’s energy efficiency claims. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record supports the conclusion that Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as charged in the Citation and Complaint issued by the Registrar. There is no credible evidence that Respondent deviated from plans or specifications, or that it failed to comply with local building code requirements. 4. The evidence of record supports the conclusion that Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (16), by using “[f]alse, misleading or deceptive advertising whereby any member of the public may be misled and injured.” Respondent presented evidence at the hearing in support of the claims made about the radiant heat barrier foil. RECOMMENDED ORDER The Citations and Complaints in Case Nos. 2010-[number redacted] and 2011-337 shall be dismissed on the effective date of the Order entered in these matters. 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 40 days from the date of that certification. Done this day, June 14, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Exhibit R-5.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826