ALJDEC decisions subject to certification as final

2020A-04765-RFA-LS-ROC · Registrar of Contractors · 2021-05-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Alfred H. Jepson,

COMPLAINANT,

v.

Neal J. Eley,

DBA: Eley Custom Homes,

License No. ROC 258470,

RESPONDENT.

No. 2020A-04765-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 13, 2021

APPEARANCES: Complainant Alfred H. Jepson appeared on behalf of himself. Assistant Attorney General Seth Hargraves appeared on behalf of the Arizona Registrar of Contractors. No one appeared on behalf of Respondent Neal J. Eley.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent Neal J. Eley DBA: Eley Custom Homes (Eley) holds license number 258470 issued by the Registrar of Contractors (the Registrar).

2. Eley’s license was suspended from June 18, 2020 through January 19. 2021.

3. On September 5, 2020, Mr. Jepson entered into a residential construction contract with Eley.

4. On September 12, 2020, Eley began work on Mr. Jepson’s home.

5. On September 12, 2020, Mr. Jepson paid Eley $3,500 for the construction work.

6. On October 2, 2020, Eley stopped work on Mr. Jepson’s home.

7. Mr. Jepson filed a complaint with the Registrar alleging poor workmanship on the part of Eley. The Registrar conducted an investigation into the complaint and issued a Directive requiring that Eley correct the deficient work. Eley failed to comply with the Directive and the Registrar subsequently issued a Citation against Eley’s license.

8. Eley failed to file a timely answer to the Citation.

9. On January 11, 2021, the Registrar issued a Final Administrative Decision and Order (Default) and found that Eley had violated Arizona Revised Statutes (A.R.S.) section 32-1154(A)(3), (17), and (22). The Registrar suspended Eley’s license for a period of 7 days.

10. On or about October 6, 2020, the Registrar received Mr. Jepson applied for a payout from the Registrar’s Recovery Fund.

11. On February 23, 2021, the Registrar denied Mr. Jepson’s application because Eley’s license was suspended at the time that the contract was signed, the date that the first payment was made, and the date that work began under the contract.

12. Mr. Jepson filed a timely appeal to the Registrar’s decision.

13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

14. On April 13, 2021, the Registrar issued a Notice of Hearing setting the matter for hearing on May 13, 2021.

15. A hearing was held on May 13, 2021.

16. At hearing Mr. Jepson testified on behalf of himself. The Registrar presented the testimony of Katelyn Rolling, a Legal Assistant II at the Registrar, and submitted exhibits 1 through 7 into evidence.

17. Mr. Jepson explained that he received Eley’s business card from Lowe’s Home Improvement Store. Mr. Jepson stated that he was unaware that Eley’s license was suspended.

18. Ms. Rolling explained that Mr. Jepson was ineligible for a payout from the Fund because Eley’s license was suspended at the time that the contract was signed, the date that the first payment was made, and the date that work was performed under the contract.

CONCLUSIONS OF LAW

Complainant bears the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Arizona Administrative Code § R2-19-119.

A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).

To be eligible for a payout from the Fund, Complainant must show that he contracted with a residential contractor who was appropriately licensed the date that the contract was signed, the date that the first payment was made, or the date that the underlying work first commenced. See A.R.S. § 32-1132(C).

A contractor is not appropriately licensed under A.R.S. § 32-1132(C) if the contractor’s license in a suspended status.

5. The undisputed evidence shows that Eley’s license was suspended at the

time that the contract was signed, at the time the first payment was made, and at the time that work began under the contract. Consequently, the Registrar appropriately denied Complainant’s Recovery Fund claim.

ORDER

IT IS ORDERED that Alfred H. Jepson’s appeal is dismissed.

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 is forty days after the date of that certification.

Done this day, May 25, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors