Pursuant to notice, a final hearing was held in Tampa, Florida on May 5 and 6, 1987 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings.
Petitioner: David E. Bryant, Esquire
Respondent: Vincent P. Nuccio, Esquire
The issue in this case is whether disciplinary action should be taken by the Department of Professional Regulation, Board of Architecture (petitioner)' against the license of Alfred T. Floyd (Respondent) based upon matters alleged in three Administrative Complaints involving three projects known as the Olde World Cheese Shop, Pioneer Park Warehouses, and the Mid-State Executive Center. At the hearing, Petitioner called twenty-one witnesses and introduced thirty-two exhibits. Respondent testified on his own behalf and introduced one exhibit. A transcript of
the hearing was filed on June 10, 1987, and the parties were thereafter allowed, at their request, to file proposed findings of fact, conclusions of law and memoranda on or before July 20, 1987. The Appendix to this Recommended Order contains specific rulings on timely filed proposed findings of fact.
Respondent is, and at all times material hereto has been, a registered architect in the State of Florida' having been issued license number AR-0002347 on November 7, 1956.
An individual known as Marshall S. Kempson appeared at the hearing, but invoked his right to be protected against self-incrimination and therefore refused to testify on the advice of counsel. Kempson worked with Respondent at times material hereto in the performance of architectural services associated with the Olde World Cheese Shop. Kempson has never been licensed to practice architecture in the State of Florida.
An individual known as James R. Cheever worked with Respondent at times material hereto in the performance of architectural services associated with the Pioneer Park Warehouses. Cheever has never been licensed to practice architecture in the State of Florida.
It was the position of Respondent that Kempson and Cheever were simply acting as draftsmen in his employ and under his instruction, control or supervision. However, the evidence establishes that these unlicensed persons acted as independent contractors rather than Respondent's employees. For example, they were not paid by Respondent for their work on these projects, but rather were paid directly by the owner or contractor on each project. Additionally, the plans for the Olde World Cheese Shop indicate they were drawn by ."Kemp" and bear the stamp of "Marshall S. Kempson, Architectural Drafting Service." Kempson frequently drafted plans at a location other than Respondent's office. Respondent did affix his seal and signature to plans prepared by Kempson and Cheever which had not been prepared under his instruction, supervision and control, knowing that neither Kempson nor Cheever were properly licensed. As such, Respondent aided and assisted unlicensed persons to practice architecture in the State of Florida.
Olde World Cheese Shop
on or about June 24, 1983 Jan E. Miller, doing business as Miller Contracting, Inc., entered into a written letter of intent with Gary Stephenson for the planning and design
of the Olde World Cheese Shop project, including the completion of all preliminary drawings. The Olde World Cheese Shop is located in The Fountains Shopping Center on Highway 19 in Palm Harbor, Florida.
The letter of intent provided that:
There will be NO CHARGE for any work done if contract is entered into with Miller Contracting, Inc. In the event, for any reason, we don't enter into contract for this work, Gary Stevenson (sic) will reimburse Miller Contracting, Inc. for all costs incurred. Said costs not to exceed
$1500.00.
On or about July 8, 1983 Miller Contracting, Inc. submitted an invoice to Stephenson which included charges for plans and specifications ($1,000) and for an architect's seal ($500).
Stephenson, as President of SMAX, Inc., entered into a written owner-contractor agreement with Miller Contracting, Inc., on July 19, 1983 regarding the Olde World Cheese Shop. This agreement identifies Respondent as the architect for this project.
Article 2 of said agreement dated July 19, 1983 refers to Miller Contracting, Inc. drawing number 064983, sheets 1-9, as well as an addendum consisting of four sheets of specifications dated July 6, 1983 on Miller Contracting, Inc. letterhead stationary.
Stephenson never met or heard of Respondent during work on the Olde World Cheese Shop. However, Miller did introduce Marshall S. Kempson to Stephenson and told Stephenson that Kempson was the person doing the drawings on this project.
The Olde World Cheese Shop plans indicate they were drawn by "Kemp)' and bear a stamp with Kempson's name followed by, "Architectural Drafting Service." Jan E. Miller testified that Respondent approved these plans before affixing his seal and signature. Further, he testified that he did deal with Respondent, as well as Kempson, on this project, and saw Respondent work on the plans. However, after reviewing all of the evidence presented and the credibility of those witnesses who testified, it is specifically found that Miller's testimony
regarding Respondent's involvement in this project is not credible. Miller paid Respondent $500 while paying Kempson
$1,000 for the plans. The plans themselves show they were drawn by Kempson and are blank next to the words, "approved by." Respondent offered no proof to corroborate his testimony that he had worked on and approved these plans.
Therefore, it is found that Respondent was paid $500 by Miller simply to affix his signature and seal on the Olde World Cheese Shop plans, and Respondent did not approve or otherwise supervise, control or instruct Kempson in his work on these plans.
The permit application for the 01de World Cheese Shop designates Respondent as architect. Pinellas County ordinances required an architect to approve and seal the plans for this project.
The plans for the Olde World Cheese Shop, which Respondent signed and sealed, were filed for public record at the Pinellas County Bui ding Department.
Respondent admitted he failed to date these plans at the time he affixed his seal and signature, and issued them to be filed for public record.
Pioneer Park Warehouses
Respondent signed and sealed drawings for a commercial warehouse project known as Pioneer Park Warehouses. The project consisted of five separate warehouse buildings, substantially identical, located at 5402, 5410, 5412, 5420 and 5440 Pioneer Park Boulevard, Tampa, Florida. The drawings for the individual buildings were submitted to, and approved by, the Hillsborough County Building Department, and permits were obtained between October, 1982 and March, 1985.
The drawings for each Pioneer Park Warehouse building included the design of a cantilever beam which showed the reinforcing steel bars bent down into the bottom face of the cantilever beam rather than in the upper third portion of the concrete beam.
The cantilever beam design was improper, negligent and inadequate according to expert testimony from James O. Power, Allen H. Seckinger and Charles T. Manausa. Additionally, it evidenced a basic disregard of the laws of
mechanics and the principles of engineering, and as such represented a violation of the ACI Code.
This error in the design of the cantilever beam was brought to Respondent's attention by Roger W. Sanders, who reviewed plans for the Hillsborough County Building Department at the time. Respondent put Sanders in touch with James R. Cheever who had done the actual drafting work on these plans, but Respondent did tell Sanders he would get the problem taken care of. Nevertheless, even after having the problem brought to his attention, Respondent continued to approve, sign, seal and submit identical plans containing this error in design for subsequent Pioneer Park Warehouse buildings.
Respondent admitted that he was negligent in allowing the improperly designed cantilever beam to appear in the Pioneer Park Warehouse drawings which he approved, signed and sealed. He contended, however, that sketches he gave to Cheever were correct and Cheever made a drafting error he did not catch. Respondent also disputed being notified of the design error by Sanders, but after reviewing all of the evidence and credibility of the witnesses, Sanders' testimony is accepted and Respondent's is rejected on the matter of notice of this defect.
Even if Respondent had not been notified of this improperly designed cantilever beam, which he admits and recognizes as a violation of the basic laws of mechanics, Respondent's actions in repeatedly approving, signing and sealing five sets of substantially identical drawings, which all evidence this negligent and improper design, constitutes negligence in the practice of architecture.
The Pioneer Park Warehouse plans which Respondent signed and sealed were filed for public record at the Hillsborough County Building Department. Respondent failed to date any of these plans at the time he affixed his seal and signature, and issued them to be filed for public record.
Mid-State Executive Center
On September 23, 1982, Respondent wrote a letter to Mid-State Federal Savings and Loan agreeing to "personally" perform inspections of a project located at Highway 301 North and Fountain Road, zephyrhills, Florida, "consisting
of three buildings, plus site improvements." This project was known as the Mid-State Executive Center. In his letter, Respondent wrote:
I have been asked by Robert F. Meyer, Jr., President of the Atlas Development Group, Inc. and managing general partner of SML Partnership to perform the inspections for draw requests on the (project) . . . . Any errors or deficiency will be noted and reported to your office with a copy to Mr. Meyer. In addition, I will be responsible for approving draw requests to be submitted periodically.
Mid-State Federal Savings and Loan approved a loan to Robert F. Meyer, Jr., SML Partnership, in the amount of
$618,000 for construction and work associated with the Mid- State Executive Center project under a construction loan agreement dated December 28, 1982. This agreement specified that funds were to be disbursed based upon an architect's certification.
The site plan for the project shows three buildings, with a total gross square footage of 18,100. The building closest to U.S. Highway 301, known as the bank building, was to have 3500 gross square feet; and the third building, known as the restaurant, was to have 5600 gross square feet.
Between September 20, 1982 and May 24, 1983, Respondent signed six drew requests submitted to Mid-State Federal Savings and Loan regarding this project. Pursuant to these draw requests, Mid-State Federal Savings and Loan disbursed $530,500 on its loan to SML Partnership.
A draw request signed by Respondent and dated January 25, 1983 in the amount of $122,030 purports to include work on all three buildings. In fact, only two buildings were ever completed, the bank building and the restaurant. The two story office building, which was to have almost one- half of the gross square footage of the entire project, was never begun, although almost 86% of the loan amount was disbursed pursuant to draw requests signed by Respondent.
Actual construction on this project did not conform to, and was not correctly depicted in, the statement of construction explained on, and attached to, the draw requests which Respondent approved and signed.
Respondent either failed to adequately inspect construction prior to approving draw requests, or knowingly approved and signed false, misleading and-inaccurate requests.
Respondent testified that he did perform regular inspections of the project. As such, he knew or should have known that the draw requests were inaccurate or false as to the explanations and allocations set forth therein.
The construction loan was prematurely depleted prior to the completion of the project, and Respondent's actions contributed to this premature depletion. He testified that he did not even know there were to be three buildings constructed, although both the site plan and his own letter of September 23, 1982 depict and reference three buildings. Although he approved six draw requests, there was no schedule of values for the project. According to expert testimony from Charles T. Manausa and also testimony from Peter M. Gottschalk, a schedule of values is necessary when an architect is called upon to approve draw requests because a schedule of values allows a particular draw request to be evaluated in relation to the entire project and to the total cost of construction. In this case, the total cost of construction was unknown to Respondent, and neither the total construction costs or the loan amount is reflected anywhere on the draw requests.
Respondent was negligent in approving and signing. the draw requests for the Mid-State Executive Center project in that he failed to exercise due care in certifying these draws.
No plans were ever prepared for the third building, the two-story office building. Therefore, no permits could be obtained for this office building. The Zephychills Building Department has nothing on file relating to the third building.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.57(1), Florida Statutes.
Respondent has been charged with violating provisions of Chapter 481, Florida Statutes, as well as rules adopted thereunder by the Board of Architecture as set forth below:
481.221 Seals.
The board shall prescribe, by rule, a form of seal to be used by registered architects holding valid certificates of registration. Each registered architect shall obtain an impression-type metal seal, and all plans, specifications, or reports prepared or issued by the registered architect and being filed for public record shall be signed by the registered architect, dated, and stamped with his seal. The signature, date, and seal shall be evidence of the authenticity of that to which they are affixed.
(4) No registered architect shall affix his signature or seal to any plans, specification, or architectural documents which were not prepared by him or under his responsible supervising control or by another registered architect and reviewed, approved, or modified and adopted by him as his own work with full responsibility as a registered architect for such documents.
481.225 Disciplinary proceedings.
The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:
(e) Violation of any provision of s. 481.221;
(g) Making or filing a report or record which the licensee knows to be false, willfully failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to impede or obstruct such filing. Such reports or records shall include only those which are signed in the capacity of a registered architect;
Upon proof that the licensee is guilty of fraud or deceit, or of negligence, incompetency or misconduct in the practice of architecture;
Violation of any rule adopted pursuant to this act or chapter 455
Aiding, assisting, procuring, or advising any unlicensed person to Practice architecture contrary to this chapter or to a rule of the department or board; or
Failing to perform any statutory or legal obligation placed upon a registered architect.
21B-12.01 Grounds for Disciplinary Proceedings.
An architect or firm shall not commit misconduct in the practice of architecture. Misconduct in the practice of architecture shall include but not be limited to:
being untruthful, deceptive, or misleading in any professional report, statement, or testimony whether or not under oath or omitting relevant and pertinent information from such report, statement or testimony when the result of such omission would lead to a fallacious conclusion on the part of the client or the general public;
(f) violation of any law of the State of Florida directly regulating the practice of architecture; .
21B-16.03 When Seal May se Affixed.
The personal seal, signature and date of the architect shall appear on all architectural documents to be filed for public record and shall be construed to obligate his partners
of his corporation . . . .
(Emphasis Supplied).
In this proceeding for license disciplinary action, Petitioner has the burden of proving by clear and convincing evidence that Respondent's actions regarding the Olde World Cheese Shop, Pioneer Park Warehouses, and Mid- State Executive Center constitute violations of the above cited statutory and rule provisions. Ferris v. Turlington, Case No. 69,561, Opinion issued July 16, 1987 (Fla. 1987); Reid v. Florida Rea1 Estate Commission, 188 So. 2d 846, 851 (Fla. 2d DCA 1966). After considering all of the evidence presented, as well as the demeanor and credibility of the witnesses, it is concluded that Petitioner has sustained its burden and has proven that Respondent has violated the above stated provisions of Chapter 481, Florida Statutes, and applicable rules adopted thereunder.
Specifically, it was shown that Respondent consistently and repeatedly failed to date his signature when he affixed his seal and signature to plans associated with these projects. He affixed his signature and seal to plans for the Olde World Cheese Shop and Pioneer Park Warehouses which he did not prepare, and which were not prepared under his supervising control and direction. As such, Respondent violated Section 481.221, Florida Statutes.
Regarding the draws which he approved for the Mid- state Executive Center, he knowingly made false reports,
and/or was guilty of fraud, deceit, negligence, incompetence or misconduct in the practice of architecture. These draws substantially depleted loan funds for this project, although only two of three buildings were ever begun or completed on the project. He testified that he performed regular, periodic inspections of the progress of construction, and yet he knowingly and fraudulently certified a draw for work on three buildings when only two were ever started. If in fact he did not make such inspections, his certifications of six draws constitute misconduct in the practice of architecture. Section 481.225(1)(g)(i), Florida Statutes; Rule 218-12.01, Florida Administrative Code.
Respondent signed and sealed drawings prepared by unlicensed persons, Cheever and Kempson, whom he had not directly controlled or supervised while they did work on the Olde World Cheese Shop and Pioneer Park Warehouses. As such, he assisted unlicensed persons in the practice of architecture since he did not exercise "responsible supervising control" as defined in Rule 21B-11.13(6), Florida Administrative Code.
By repeatedly approving and submitting five sets of plans for the Pioneer Park Warehouses which had an improperly, negligently and incompetently designed cantilever beam, Respondent was negligent and incompetent in the practice of architecture. Respondent admitted his negligence in failing to correct the design which was contrary to basic laws of mechanics and engineering principles. Section 481.225(1)(i), Florida Statutes.
Based upon the foregoing, it is recommended that the Board of Architecture enter a Final Order revoking Alfred T. Floyd's license to practice architecture in the State of Florida.
DONE AND ENTERED this 23rd day of July, 1987 in Tallahassee, Florida.
DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1987.
David E. Bryant, Esquire 1107 East Jackson Street Suite 104
Vincent P. Nuccio, Esquire 3939 West Kenndey Blvd., Tampa, Florida 33609
Joseph A. Sole, Esquire General Counsel
Petitioner sought and was granted an extension until and including July 20, 1987 for the filing of proposed findings of fact. However, such proposed findings were not timely filed by July 20, 1987 and therefore have not been considered.
(Although Respondent has not included specific citations to the record as required by Rule 221-6.031(3), Florida Administrative Code, and has not numbered the paragraphs of his proposed findings of fact, said proposed findings of fact have been considered as follows, and paragraphs appearing under "Arguments" have been sequentially numbered).
3-5. Rejected as irrelevant, unnecessary and cumulative, and
fact.
6-7. Rejected in Finding of Fact 11 and otherwise as legal
argument rather than a proposed finding of fact.
11-14. Rejected as argument rather than a proposed finding of
fact, speculative and irrelevant.
15-16. Adopted in part in Finding of Fact 32, but otherwise
rejected in Findings of Fact 22, 24, 26 and 30.
