ALJDEC decisions subject to certification as final

2013A-1118-ROC · Registrar of Contractors · 2013-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 22, 2013 APPEARANCES: Darrell S. Dudzik appeared personally. Custom Energy Design, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ FINDINGS OF FACT 1. On March 8, 2013, Darrell S. Dudzik (“Complainant”) filed a written Complaint against Custom Energy Design, L.L.C. (“Respondent”) with the Registrar of Contractors (“Registrar”) alleging violations of the State’s contracting laws by Respondent regarding an energy efficiency package purchased by Complainant and installed by Respondent. 2. On June 11, 2013, the Registrar issued a Citation and Complaint in Case No. 2013-1118 charging Respondent with violations of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1158(B). 3. On September 6, 2013, the Registrar issued a Notice of Hearing in Case No. 2013-1118 notifying the parties that an evidentiary hearing was scheduled for October 22, 2013, at 8:00 a.m., before the Office of Administrative Hearings, an independent agency. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 4. Respondent failed to appear at the time scheduled for hearing and did not request to appear telephonically. After the expiration of a fifteen-minute grace period, the Administrative Law Judge conducted the hearing in Respondent’s absence. 5. In the spring of 2011, Complainant received information about an Energy Audit from Salt River Project, Complainant’s electrical supplier. 6. On or about July 2, 2011, Complainant and Respondent entered into a contract evidenced by a written Invoice for the following scope of work: (i) One Solar Hot Water Heater and Energy Efficiency Package AET Model # DX-8040 Energy Efficiency Package includes Radiant Barrier, Air Seal, Duct Repair and Duct Seal for $15,118.00; (ii) One SAT D Power Corrector at no charge; (iii) Blown in Insulation for $1,350.00; and (iv) Sun Screens for $2,178.00. The Invoice reflects that Complainant received a “Green Energy Now Discount 15%” for a credit of $2,799.00. The total contract price of $15,847.00 was paid by Complainant to Respondent on September 13, 2011. However, the Invoice did not contain all of the minimum elements of a contract required by A.R.S. § 32-1158(B). 7. On July 2, 2011, the parties executed an Energy Savings Guarantee, wherein Respondent guaranteed that Complainant’s total energy cost would be reduced by 35%. 8. At the hearing, Complainant testified that he received no energy savings as a result of Respondent’s scope of work. Respondent replaced Complainant’s existing electrical hot water heater with a new solar hot water heater, but Complainant did not receive the promised energy savings. Respondent improperly installed the radiant barrier in Complainant’s attic. The radiant barrier was installed over insulation on the attic’s floor, instead of installing it on the rafters. There are gaps in the installed barrier. As a result of Respondent’s insulation, the attic now heats up the air handlers located in the attic. The installation of the radiant barrier was the only work performed to seal the attic. The duct sealing was accomplished by using caulk. 9. Respondent was unresponsive to Complainant’s requests for remedial repairs to Respondent’s scope of work. 10. By letter dated March 12, 2013, the Registrar advised the parties that Respondent’s contracting license had been revoked on March 11, 2013. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 32-1154(C), the revocation of Respondent’s contracting license does not deprive the Registrar of jurisdiction to proceed with disciplinary proceedings against the license or to impose discipline against such license for proven statutory and regulatory violations. 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. See A.A.C. R2-19-119(A). 3. The evidence of record established that Respondent violated the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108. Respondent’s performance of work on the subject project failed to meet minimum workmanship standards. The work performed by Respondent failed to result in the 35% energy savings that Respondent guaranteed Complainant would receive. 4. The evidence of record established that Respondent violated the provisions of A.R.S. § 32-1158(B), as charged in the Citation and Complaint. Respondent failed to present Complainant a contract containing the following required information: (i) Respondent’s contracting license number; (ii) The estimated date of completion of the project; (iii) Any payment schedule; and (iv) An advisement of Complainant’s right to file a written complaint with the Registrar for any alleged violation of A.R.S. § 32-1154(A) by Respondent. RECOMMENDED ORDER In view of the foregoing, it is recommended that Respondent’s License No. B.271042-R be revoked on the effective date of the Order entered in Case No. 2013-1118.

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 shall be forty (40) days from the date of the certification. Done this day, November 12, 2013.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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