STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 85-1175

)

CHARLES B. KISER, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing on July 16, 1985, in Orlando, Florida, before Diane A. Grubbs, a hearing officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Wings Slocum Benton

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No Appearance

ISSUE

Whether respondent's license to practice architecture should be disciplined if he filed statements in the capacity of an architect which he knew to be false, misleading; deceptive, untrue, or fraudulent, and if he failed to have a certificate of authorization for a corporation through which he practiced or offered to practice architecture.

BACKGROUND

By an amended administrative complaint dated June 18, 1985, respondent was charged with violating Section 481.225(1)(a), Florida Statutes, by not complying with Section 455.227(1)(a), which prohibits a licensee from making misleading, deceptive, untrue, or fraudulent representations in the practice of his profession; with violating Section 481.225(1)(g), Florida

Statutes, by making or filing a report or record which the licensee knew to be false, when the record is signed in the capacity of a registered architect; with violating Section 481.225(1)(i), Florida Statutes, which prohibits deceit or misconduct in the practice of architecture and with violating Section 481.219, Florida Statutes, which requires a certificate of authorization from the Board of Architecture for a corporation through which a licensed architect practices or offers to practice architecture. Specifically, the amended complaint alleged that respondent, as agent for The Orange Group, Inc., fraudulently filed or caused to be filed a notice of contract and two claims of lien. Each of the two claims of lien claim entitlement to $50,000.00 in consideration of or for professional services rendered to Dr. Julio and Edna Aljure, which services were later described by respondent as architectural services.

The complaint alleged that respondent willfully exaggerated the

value of such architectural services, if any architectural services were performed, and that the Orange Group, Inc. was not licensed to practice architecture in Florida.

As a preliminary matter at the hearing, respondent's counsel was granted leave to withdraw as counsel of record. Respondent had been informed of the hearing date and time by his counsel and the notice of the hearing had been mailed to him by his counsel, but the respondent did not appear at the hearing. Certain facts were deemed admitted; upon petitioner's ore tenus motion, by operation of Rule 1.370(a), Fla. R. Civ. P.

Petitioner presented the testimony of four witnesses and had twenty exhibits received in evidence; including two depositions of respondent taken in a related civil suit.

Petitioner submitted proposed findings of facts and conclusions of law. A ruling on each proposed finding of fact has been made in the appendix to this order.

FINDINGS OF PACT

1. At all times material to this proceeding, respondent was a registered architect licensed by the State of Florida.

   
   

2. On or about September 3, 1982, The Orange Group, Inc., made a written offer to purchase three parcels of property from Dr. Julio Aljure and his wife, Edna Aljure. Respondent signed for The Orange Group, Inc. The Aljures signed the offer, which became the contract for sale, on October 22, 1982, setting November 30, 1982, as the closing deadline. November passed with no closing. Respondent never made an effort to close on November 30, 1982, under the September 3, 1982, contract. Dr. Aljure never refused to close.

3. Respondent and Dr. Aljure negotiated again in December of 1982. Dr. Aljure received respondent's new offer in January of 1983. On January 5, 1983, he returned the offer subject to certain conditions, one of which was that the transaction had to be closed by January 14, 1983, or the contract would be void.

   Dr. Aljure never received an agreed upon and countersigned offer, and respondent made no effort to close. When January 14, 1983, passed with no closing, Dr. Aljure considered the matter concluded as of that date. Dr. Aljure had never refused to close.

   
   

4. On January 20, 1983, respondent called Dr. Aljure in an attempt to close on the property. Dr. Aljure informed the respondent that there was really nothing to close, due to the time delay, but told the respondent that he would go to the title company to look over the papers that respondent had prepared.

   The settlement papers that respondent had prepared were totally unacceptable to Dr. Aljure, and Dr. Aljure called respondent on January 21, 1983, to inform him there would be no closing.

   Respondent threatened to sue Dr. Aljure if he would not close. Respondent acknowledged that Dr. Aljure had never refused to close prior to January 20, 1983.

   
   

5. On January 21, 1983, respondent contracted with Dane Fuller to sell the majority of the property to him for $135,000 cash and $90,000 in property, subject to closing with Dr. Aljure. Another contract with Fuller sold the remainder of the property, the west 200 feet of the Indian River Drive property, for

   $40,000. Dan Fuller was aware that Dr. Aljure had refused to close the day before. Respondent never agreed with anyone other than Fuller to sell the Aljure property if he got it.

   
   

6. In a letter to Dr. Aljure dated January 24, 1983, respondent stated, "I will file a notice of record at both counties that I have a valid, signed contract for the next six

   (6) months." He also threatened Dr. Aljure with a lawsuit for specific performance or damages if he would not close.

   
   

7. On January 27, 1983, respondent filed a Notice of Contract in Brevard County, relating to the Aljures' property at 941 Indian River Drive in Cocoa, Florida. On January 28, 1983, respondent filed two claims of lien in Hillsborough County, relating to the Aljures' property in Lake Forest and Hollyglen. Each lien on its face claims $50,000 for "essential services involving completion" furnished between October 8, 1982 and January 20, 1983; for each property.

   
   

8. In an undated letter, which Dr. Aljure recollects was postmarked in March or early April of 1983, respondent demanded

   that Dr. Aljure either close on the property or give him compensation in the amount of $50,000 because Dr. Aljure caused him to lose two deals well in excess of that amount.

   
   

9. A letter dated April 20; 1983; to Dr. Aljure's attorney from an attorney for Barnett Bank advised that although it did not appear that the Notice of Contract should have been recorded by the clerk of the court, since it was not acknowledged by the Aljures; and although it did not appear that there was a valid contract in January of 1983; the Notice of Contract in Brevard County nevertheless created a cloud on the title; which a quit claim deed from The Orange Group, Inc. would be sufficient to clear.

   
   

10. The Notice of Contract and the two claims of lien caused Dr. Aljure to lose opportunities to sell his property. Respondent neither filed a quit claim deed nor withdrew the Notice of Contract in Brevard County. He never withdrew or attempted to void the two claims of lien on the Lake Forest and Hollyglen properties in Hillsborough County.

    
    

11. In May 1983, Dr. Aljure and his wife filed a civil suit against respondent and The Orange Group Inc. in Circuit Court, Thirteenth Judicial Circuit to clear the title to their three parcels of property.

    
    

12. On or about September 12, 1983, respondent filed or caused to be filed in the civil suit his sworn affidavit supporting his counterclaim. Respondent's affidavit identifies himself as "president of The Orange Group, Inc." and "the corporation's licensed architect in the State of Florida." The affidavit further states that The Orange Group, Inc. employed respondent "to act as their President and to render architectural advise (sic) and services in addition to other managerial services in the State of Florida." The affidavit also states that The Orange Group, Inc. inspected the property, reviewed photographs, prepared conceptualization sketches, discussed loan and sale arrangements, for which services it was entitled to

    $50,000 from Dr. Aljure and Edna Aljure on or for all three properties. Respondent also averred that when the Aljures decided not to make the recommended changes, the Aljures agreed to sell the properties to the company at a favorable price in lieu of payment for the architectural services. Respondent claimed that the sketches were destroyed when the contract for sale was accepted on October 22, 1982.

13. On or about January 30, 1984, respondent filed or caused to be filed in the civil suit his sworn affidavit in opposition to partial summary judgment. This affidavit states respondent is licensed to perform architectural services in

    Florida, that Dr. Aljure requested him to perform labor or services with respect to rendering sketches of the property which formed the basis of the mechanics liens, and that respondent was employed by The Orange Group, Inc. when he performed said architectural services. The affidavit adds that, pursuant to negotiations, respondent, as agent of The Orange Group, Inc., would not bill for architectural services if Dr. Aljure would sell The Orange Group, Inc. the property.

    
    

14. Respondent is, and was at all times material hereto, President and sole stockholder and director of The Orange Group, Inc., a Georgia corporation authorized to do business in Florida. On its application to transact business in Florida, the nature of the business to be transacted by The Orange Group, Inc. is stated as "real estate transactions."

    
    

15. The Orange Group Inc. has never had a certificate of authorization which would entitled it to offer or practice architecture in the State of Florida.

    
    

16. On December 23, 1983, respondent's sworn deposition was taken in the civil suit. In his deposition, respondent testified as follows:

    
    

    1. The Orange Group, Inc.: As president of The Orange Group; Inc he does everything necessary to make the business function. The nature of The Orange Group's business is the purchase of real estate. The only employees of the corporation are his daughter and himself. The Orange Group, Inc. is not licensed to practice architecture in Florida. Respondent conducts architectural business on his own, but he has been hired by The Orange Group to perform architectural services. He was so hired in relation to the Aljures property.

       
       

    2. Architectural Services and Fees: Respondent claimed he made sketches of the houses on the three parcels of property to show Dr. Aljure what changes could be made to make them more attractive for sale. He estimated he spent well over 100 hours working on the concepts of how to make the property look better for sale purposes. As to the Cocoa property, he recommended eliminating some walls and putting in skylights to let the air and light get in. As to the Lake Forest and Hollyglen property he recommended mostly cosmetic changes on the exterior, and changing a few walls inside, but basically felt these were pretty nice houses. Sketches were done on all the houses, but most of the sketches were on the Cocoa house. Respondent never made "hard line working drawings". Respondent never discussed a specific fee with Dr. Aljure and never billed him. Respondent never actually determined how much time he spent providing services. Respondent's hourly billing rate was $150 per hour,

       but he never discussed his billing rate with Dr. Aljure. Respondent said his work in connection with the sketches was substantially less than $50,000. Respondent described the total architectural services he provided as not only the sketches, but also advice. He was the only person involved in performing those services. There was no written contract or document of any kind to explain what services respondent would perform for Dr. Aljure.

       
       

    3. The Liens: Respondent admitted that he prepared and filed the two claims of lien. The "essential services" mentioned in the liens were architectural services. Respondent would have filed notices of contract rather then liens on the Lake Forest and Hollyglen property in Hillsborough County, if he had been permitted to do so, because he really wanted the property rather than payment for his services. He had already made a deal to sell the property after he got clear title, but Dr. Aljure would not give him title so he lost out on the resale opportunity. Respondent thought that the architectural services he provided on all three properties could total $50,000, although respondent had no agreement, oral or written, with Dr. Aljure for that amount, and he did not refer to any notes he may have made to determine the amount. He stated he was trying to protect his "interest" after Dr. Aljure refused to close on the contract.

    
    

17. On February 20, 1984, Respondent was deposed a second time in the civil suit. In this deposition respondent testified essentially as he had at his earlier deposition. He testified that the $50,000 figure for architectural services was for all three houses, that the amount was a "guesstimate", and that he kept no records or notes regarding time spent performing the services. He also stated that he last performed architectural services for Dr. Aljure on September 3, 1982, and that the dates on the liens he filed were incorrect. He was unable to provide in any detail what the interior of the house in Brevard County looked like, even though he claimed that was the house he spent the most time working on. Respondent admitted that he never went into the two houses in Hillsborough County.

    
    

18. Dr. Aljure never had any agreement with the respondent or with The Orange Group, Inc. to perform any architectural services on any of the three houses. Dr. Aljure never asked for sketches; and he never received any sketches. Respondent never discussed with Dr. Aljure any possible improvements or renovations for the homes. Dr. Aljure was not even aware that the respondent was an architect until respondent filed an affidavit in the civil action stating that he was an architect.

    
    

19. Respondent performed no architectural services for Dr. Aljure. However, even if he had performed the services that he claimed he performed, the maximum fee for such services would

    have been no more than $2,000. To design a house such as the homes located in Hillsborough County from the ground up would cost between $5,000 to $10,000, depending on whether it was a "spec" home or designed for a specific individual, and concept sketches would constitute less than 15% of that fee. In other words, a $50,000 fee for the architectural services claimed to have been performed would be grossly excessive.

    
    

20. Respondent filed the claims of lien, knowing that he had not performed any architectural services; for the sole purpose of forcing Dr. Aljure into selling the property in question to him; i.e., The Orange Group, Inc.; so that he could resell the property at a profit.

    
    

21. The Orange Group; Inc., is the alter ego of the respondent. The respondent directed all actions taken by the corporation, and must be held responsible for the actions of the corporation.

    
    

22. Dr. Aljure and his wife prevailed in the civil suit and were awarded both punitive and compensatory damages. The court found that respondent had fraudulently filed the claims of lien and Notice of Contract. The court pierced the corporate veil and found respondent personally liable. Respondent never paid the Aljures anything toward the damages, nor did he appeal the judgment. The Aljures have been unable to locate the respondent.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

24. Section 481.225(3), Florida Statutes, authorizes the Board of Architecture to revoke or suspend the license of an architect, to impose an administrative fine, to place an architect on probation, to reprimand an architect, and/or to restrict the scope of practice of an architect, if the architect is found guilty of committing any of the acts enumerated in Section 481.225(1), Florida Statutes.

    
    

25. Section 481.225(1) provides:

    
    

    1. The following acts constitute grounds for which the disciplinary actions in Subsection (3) may be taken:

       
       

       1. Violation of any provision of s. 481.223 or s. 455.227(1):

          . . . .

          
          

          (g) Making or filing a report or record which the licensee knows to be false. . . .

          Such reports or records shall include only those which are signed in the capacity of a registered architect.

          
          

          . . . .

          
          

          (i) Upon proof that the licensee is guilty of fraud or deceit, or of negligence, incompetence, or misconduct in the practice of architecture.

          
          

26. Section 455.227(1), provides that a board may discipline a licensee who "has made misleading, deceptive; untrue, or fraudulent representations in the practice of his profession."

    
    

27. Respondent is subject to discipline pursuant to Section 481.255(1)(a), Florida Statutes, and Section 455.227(1), Florida Statutes, because he made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. Although he never performed any architectural services for the Aljures, he claimed that he performed such services to justify. the mechanic's liens that he placed on the Aljures' properties.

    
    

28. Misconduct in the practice of architecture includes "being untruthful, deceptive, or misleading in any professional report, statement, or testimony whether or not under oath. "

    Rule 21B-12.01(6 (a), Florida Administrative Code. By falsely claiming and testifying that he performed architectural services for the Aljures worth $50,000, respondent is guilty of misconduct in the practice of architecture, which constitutes grounds for discipline pursuant to Section 481.225(1)(i), Florida Statutes.

    
    

29. Respondent has also been charged with "making or filing a report or record which the licensee knows to be false" in violation of Section 481.225(1)(g), Florida Statutes. The report or record must be one which the licensee signed "in the capacity of a registered architect." Respondent filed two mechanics liens, as the agent of The Orange Group; Inc., each of which claimed that The Orange Group, Inc., pursuant to a contract with the Aljures, had performed "essential services" on the real property owned by the Aljures worth $50,000. Respondent testified that the "essential services" were architectural services which he, personally, performed. In fact, respondent did not perform any architectural services for the Aljures on the properties in question. Respondent knew that the claims were false when he

    filed them. Because the claims were for architectural services allegedly performed by respondent, it is apparent that respondent signed the claims "in the capacity of a registered architect".

    The Orange Group, Inc., was nothing more than the alter ego of the respondent, and the actions of the corporation were the actions of the respondent.

    
    

30. Finally, respondent is charged with violating Section

481.219 because he failed to obtain a certificate of authorization for The Orange Group, Inc. Section 481.219(1), Florida Statutes, provides:

1. The practice of or the offer to practice architecture by licensees through a corporation . . . offering architectural services to the public, or by a corporation .

. . offering architectural services to the public through licensees . . . is permitted, subject to the provisions of this act, provided:

(b) The corporation or partnership has been issued a certificate of authorization by the department as provided in s. 481.213.

The Orange Group, Inc., has never been licensed by the Florida Board of Architecture. However, the evidence does not show that The Orange Group, Inc. ever offered architectural services to the public. Indeed, the evidence shows that no architectural work was offered or performed by The Orange Group, Inc. or its sole agent, the respondent. Therefore, respondent is not guilty of violating Section 481.219.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a final order be entered finding respondent guilty of violating Section 481.225(1)(a), Section 481.225(1)(g), and Section 481.225(1)(i), Florida Statutes, and revoking respondent's license.

DONE and ENTERED this 26th day of February, 1986, in Tallahassee, Florida.

DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986.

COPIES FURNISHED:

Wings Slocum Benton, Attorney Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

J. W. Hendry Executive Director Board of Architecture

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Charles B. Kiser P. 0. Box 76329

Atlanta, GA 30328

APPENDIX

The following constitutes my specific rulings pursuant to section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings On Proposed Findings of Fact Submitted by the Petitioner

1. Accepted in Finding of Fact 1.

   
   

2. Accepted in Finding of Fact 2.

   
   

3. Accepted in Finding of Fact 3.

   
   

4. Accepted in Finding of Fact 4 however, last sentence rejected in that it is unclear whether the "deal" respondent was referring to was the contract for the properties or the agreement for architectural services that respondent claimed he had with Dr. Aljure.

   
   

5. Accepted except as to total price for the property. Although a contract price of $40,000 is mentioned in reference to a document between The Orange Group and Fuller (D.II-30), respondent subsequently explains that the $40,000 contract for sale involved only the western 200 ft. of the property and that two different contracts were involved (DII32).

   
   

6. Accepted in Finding of Fact 6.

   
   

7. Accepted in Finding of Fact 7.

   
   

8. Accepted in Finding of Fact 8.

   
   

9. Accepted in Finding of Fact 9.

1. Accepted in substance in Finding of Fact 17. However, the majority of paragraph, although accepted as true, is not adopted because it is cumulative and unnecessary.

   
   

2. Accepted in substance in Finding of Fact 18.

   
   

3. Accepted generally in Finding of Fact 19. In that I accept Dr. Aljure's testimony that no architectural services were performed, the majority of petitioner's proposed finding is unnecessary and therefore not included in the recommended order. I do not find respondent statements that he performed architectural services to be credible.

   
   

4. Accepted in Finding of Fact 21.

Docket for Case No: 85-001175

Orders for Case No: 85-001175