ALJDEC decisions subject to certification as final

2021A-03375-CHC-ROC · Registrar of Contractors · 2021-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Patricia Jean Pavlick,

COMPLAINANT

David Everett Overmyer

DBA: Cascade Drywall,

License No. ROC 298935,

RESPONDENT

No. 2021A-03375-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 8, 2021

APPEARANCES: Complainant Patricia Jean Pavlick was represented by Mark Molique. Respondent David Everett Overmyer appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

David Everett Overmyer, doing business as Cascade Drywall (Respondent) is the holder of License No. 298935 issued by the Arizona Registrar of Contractors (Registrar).

On or about February 24, 2021, Patricia Jean Pavlick (Complainant) entered into an agreement with Respondent for a “Level 5 smooth wall finish” for a total cost of $36,000.00. During the course of the drywall work, the parties agreed Respondent would also perform trim work including casing around doors on a time and materials basis. The parties did not execute a written contract for either scope of work.

On or about July 20, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jim Dimond. After a jobsite inspection, Investigator Dimond issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on September 13, 2021.

. . . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Drywall: Level 5 Smooth Wall Finish. Visible tool marks and other issues on all walls and ceilings.

Investigator’s Observation: Throughout the upper level of the home, a smooth wall finish in exposed areas. There are areas that appear to have repaired over paint. This is in numerous locations in the home's upper level. The radiused areas exhibit flat spots creating irregularities in radius surface. Numerous areas circled in pencil reportedly by the respondent remain unrepaired and the areas have already been painted.

. . . .

Compliance Item: 2 - Paint: Painted without finishing drywall. Peeling paint around all windows because of not knowing how to prep. The paint bled under the tape so his suggestion to fix it was to scrape all windows with a putty knife and when doing so he scratched all window frames. Visible overspray in a lot of places. Overspray on doors and fireplaces. Did not back roll on the first coat which led to flashing issues on all walls and ceilings. No where near a professional job

Investigator’s Observation: The listed issues are throughout the upper level. At the window frames, the prep was poor and it is going to take considerable effort to bring the frames back to like new. There is overspray on the frames and the front door frames. The walls were painted by the respondent prior to the drywall finish being accepted.

. . . .

Compliance Item: 3 - Trim work (casing around doors): Lifting problem, casing not flushed in spots, and joints are not tight. My son Kristopher (Kris) (see attachment giving him permission to handle this) gave him the opportunity to fix the drywall and it still did not come out right. He asked Kris if he wanted him to fill the joints of the casing with spackling. Kris told him NO because Kris was going to take off the head of all door casings and install new ones that are the correct length so the joints are tight. When Kris returned to the job site Dave had filled all the joints of the casing with drywall mud (spackling). Kris met with him on May 22, 2021, they could not resolve the situation by themselves so I felt we needed a mediator. I filed an informal complaint. Jim Diamond met Kris at the job site, did his inspection and agreed all items did NOT meet ROC Workmanship Standards. Kris contacted Dave to see when he was going to come back and fix the drywall he told him he was not coming back. Now I'm filing this formal complaint.

Investigator’s Observation: The door casing throughout the project is ill fitting at the miters, have inconsistent gaps between the trim and the door frame and have numerous exposed fasteners (shiners) that need removed.

. . . .

Compliance Item: 4 - Administrative Violation- The respondent failed to initiate a written contract on a project over $1000

Investigator’s Observation: The respondent did not use a written contract and the verbally agreed upon amount for both upstairs and downstairs was $36,000 and $20,000 was paid.

The appropriate correspondence has been sent.

Following the issuance of the written directive, Respondent made no attempt to contact Complainant regarding the issues identified in the written directive. After the deadline in the directive expired, Investigator Dimond was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Dimond stated that a Level 5 drywall finish would require no tool marks or “chatter” marks left on the surface of the finish. Investigator Dimond also testified as to the lack of workmanship exhibited by the gaps and void in the door casing and the “shiners” where the fasteners were showing.

Christopher Pavlick, Complainant’s son, testified that when he noted the finish was not smooth throughout the entire house, they filed with the Registrar to obtain a Building Confidence visit to determine whether the work was within the Registrar’s workmanship standards. Mr. Pavlick stated the inspection results indicated the work was not in compliance with the registrar’s standards. On or about July 9, 2021, Mr. Pavlick texted Respondent indicating that it had been two weeks since the findings and he had not heard anything about fixing the issues. Mr. Pavlick stated that Respondent called him approximately five minutes later and said he would not return to the house. Mr. Pavlick stated that he did not hear anything from Respondent following the issuance of the written directive.

Mr. Overmyer testified that the parties had a misunderstanding as to what a Level 5 smooth finish entailed. Mr. Overmyer used a 1 through 10 rating system, but Mr. Pavlick used a 1 through 5 rating system. Mr. Overmyer indicated that he did not contract with Complainant for the trim and doors, but indicated that he agreed to do the work for $35.00 an hour. Mr. Overmyer asserted that he was fired from the trim and doors, so he was unable to complete the work or correct the issues identified in the written directive. Mr. Overmyer stated that Mr. Pavlick had texted him that he should not call him anymore and that Mr. Pavlick had blocked him. Mr. Overmyer admitted he had made no attempt to correct any of the items in the written directive. Mr. Overmyer also acknowledged he did not have a written contract with Complainant.

Administrative notice is taken of Respondent’s prior License record on December 22, 2021. Such prior License record reflects that Respondent’s License No. 298935 was first issued on July 2, 2015, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent did not have a written contract with Complainant as required by A.R.S. § 32-1158(A). Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 298935 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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.

-54864001

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-137160-45720000Done this day, December 22, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000