vs. ) Case No. 85-3384
JOHN H. VONGUNTEN, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this case on November 20 and 21, 1985 in Deland, Florida. The following appearances were entered:
For Respondent: Joseph A. Scarlett, Esquire
Joseph R. Clark, Esquire
The issue for determination at the final hearing was whether Respondent committed the allegations contained in the Administrative Complaint, specifically: (1) misconduct in the practice of architecture, and/or; (2) violation of a rule adopted pursuant to Chapter 481, Florida Statutes (1983).
The Administrative Complaint was filed with the Department of Professional Regulation on August 29, 1985. By letter dated September 16, 1985, the Respondent disputed the allegations of
fact contained in the Administrative Complaint and requested a formal hearing before a hearing officer appointed by the Division of Administrative Hearings. This cause came on for final hearing on November 20 and 21, 1985. At the final hearing, Petitioner presented the testimony of 7 witnesses. In addition, Petitioner's Exhibits 1-10, 12, 13, 15, 16, 18 and 19 were offered and duly received into evidence. The Respondent testified in his own behalf and presented the testimony of 4 witnesses along with Respondent's Exhibits 1 and 2.
The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
At all times material to this proceeding, the Respondent, John H. Vongunten, has been a registered architect in the State of Florida, having been issued license number AR- 0006074 which expires on January 31, 1987.
The Respondent graduated third in a class of 600 from the University of Pennsylvania. While attending the University of Pennsylvania, Respondent received several honors, including the John Stewardson Memorial Scholarship, was runner-up for the Rome prize, and was Phi Beta Kappa in architecture. Respondent first registered as an architect in Kansas in 1949 and in Florida and Ohio in 1956. Respondent is a member of the American Institute of Architects, the American Registered Architects, and the Guild for Religious Architecture. During his career, Respondent has worked as an assistant on a project with Frank Lloyd Wright, completed 56 churches, 23 automobile agencies, 15 industrial projects and 4 health care facilities. Respondent's background also includes a brief military career where he served as a carrier based fighter pilot, flew with the Blue Angels and received the Navy Cross for service during World War II.
The Respondent was employed by Hunton, Shivers, Brady, Associates, P.A. from 1981 until his termination in September of 1984. The Respondent was assigned to provide services to the joint venture of Medical Facilities Consultants (MFC), of which Hunton, Shivers, Brady Associates, P. A. took part. MFC is an architectural firm under contract with the Florida Department of Health and Rehabilitative Services (HRS) to review design plans for health care facilities.
Pursuant to its contract with HRS, MFC was required to provide consultative services and perform detailed analysis of proposed medical facilities construction projects and to determine compliance with state licensure standards with respect
to architectural, mechanical, electrical and structural engineering disciplines. MFC is a joint business venture which combined the efforts of the architectural firm of Hunton, Shivers and Brady Associates, P.A. and Tilden, Lobnitz and Cooper, Inc.
Consulting Engineers. Tom R. Hunton was designated as the representative of the firm to act as contract administrator with HRS for non-technical matters related to administration and work flow. Mr. Hunton was the only individual with complete authority to sign documents and bind the firm in matters relating to the contract. MFC is business operations consisted solely of its work for HRS.
The Respondent was employed by MFC as senior architect in charge of the review process. Respondent reviewed the architectural portion of all plans that came in the office; other employees reviewed mechanical and electrical aspects of the plans. Respondent, as senior architect, was the coordinator between mechanical, electrical and architectural.
The review process consists of three (3) primary stages of plan submittal to HRS. The first stage is the furnishing of schematic plans. Schematic plans are not very detailed and may consist of single line drawings of the proposed facility. The second stage is much more detailed and is called the submission of preliminary plans. Walls with elevations and other details are shown in this second stage of review of the "design development drawings." The third and final phase is the construction documents review stage. At this stage, there is a full list of plans, including architectural, engineering, landscaping and civil engineering portions of the project.
Under a typical review, the design professionals seeking to build the project submit the plans to HRS through the plans and construction section of the Office of Licensure and Certification located in Jacksonville. The plans are thereafter passed on to MFC for their review of the plans pursuant to the previously mentioned contract. MFC provides assistance in all these stages of the review process. MFC then reviews the plans and submits a report to HRS which recommends approval or disapproval and may contain comments about the project. The Office of Licensure and Certification then decides to approve the project or to disapprove it. HRS receives plan review fees as a part of the plan review process. Requests for official plan review fees are made in writing by Mr. Rosenvold.
MFC principals and employees generally do not have direct contact with the design professionals. However, at the schematic plans stage, often a meeting is held at the HRS office in Jacksonville between HRS officials, MFC and the design professionals. MFC officials were instructed by Richard
Rosenvold, administrator for the Plans and Construction Section, not to contact the design professionals without prior approval of the Office of Licensure and Certification.
During the summer of 1984, MFC was employed to review the design documents for a health-care project known as "The Cloisters of Deland" to be built in Deland by the firm of MacMahon-Cajacob Associates. The Cloisters of Deland is planned as a retirement community on an eleven and one-half acre site in downtown Deland. A multi-story building is projected to house general-use facilities on the first floor including administration, food service and activity areas, and a 60-bed skilled nursing facility on the entire second floor. The remaining 6 floors are projected to contain apartments. HRS is required to review the nursing home portion of the project.
When HRS submits plans for review to MFC, MFC generally has 30 days in which to respond. An architectural review, a mechanical review, an electrical review and a fire protection review is completed. After these reviews are completed, Tom Hunton reviews the comments, if any, and signs off on a package which is sent to HRS recommending approval or disapproval and including comments.
The Cloisters project was scheduled to be returned to HRS by MFC on or before August 31, 1984. Tom Hunton signed off on the The Cloisters of Deland project on August 29, 1984 recommending disapproval. Contrary to normal procedure, the disapproval package signed by Mr. Hunton was not mailed immediately to HRS, but was held up by Respondent.
In the review process, it was Respondent's job to review the comments of the architect, the mechanical engineer and electrical engineer, mark the comments approved or disapproved, and give the package to Hunton. When Hunton signed off on The Cloisters project on August 29, 1984, it was disapproved in all three categories: architectural, electrical and mechanical. The Cloisters project package was not mailed out immediately after Hunton signed it because Respondent kept it in his office for an undetermined reason.
On September 5, 1984, the Respondent telephoned Mr. MacMahon (supervising architect for The Cloister project) in Deland and advised him that the construction documents of The Cloisters of Deland had been reviewed and that they contained numerous violations and would be disapproved by the Office of Licensure and Certification. The Respondent advised Mr. MacMahon that he was in a position to assist them in making corrections that would avoid disapproval. The Respondent advised that he had a team of "moonlighters" available to assist them at the rate of
$100 an hour per man. Respondent told MacMahon that the moonlighting service would be a way to get contingency approval, and thus, avoid rejection and considerable loss of time.
Because Mr. MacMahon was planning to leave town for a short period of time, he asked his partner, Alan Cajacob, to handle the matter with Respondent. On September 6, 1984, Respondent and Mr. Cajacob spoke on the telephone. Respondent suggested a meeting to discuss the situation concerning problem areas in the plans. Mr. Cajacob was interested in finding out what the comments or problem areas found in the plans by the reviewers were; he, therefore, agreed to a meeting. The Cloisters project was under construction and time was critical to the project.
Thereafter, a meeting was held on Saturday, September 8, 1984, between Mr. Cajacob, the Respondent, and Mr. Carl Stanton. Mr. Cajacob invited Mr. Stanton (supervisor and project manager of construction at The Cloisters) to attend the meeting because Stanton was thoroughly knowledgeable about the project.
Mr. Cajacob anticipated that Respondent would bring a list of the deficiencies or comments from the reviewing team to the meeting for discussion. However, Respondent advised Cajacob that it was his intention to obtain a clean set of construction documents and have them marked up in red pencil with comments from a team of people who could review them quickly over the weekend. Respondent told Mr. Cajacob that his reviewing team consisted of mechanical and electrical personnel who had previously worked as reviewers for HRS for these types of plans. The Respondent repeated his assertion that his moonlighting team could avoid a complete turndown of the construction documents and obtain a conditional approval of the plans. This could be accomplished because with the comments, changes in the construction documents could be made and inserted so that costly delay would be-avoided. Therefore, Cajacob gave the Respondent a "clean" set of plans.
At the conclusion of the September 8th meeting, Respondent asked Cajacob for a total of one thousand dollars ($1,000). The Respondent wanted five hundred dollars ($500) "up front" money as a retainer to pay for his time and the time and expenses of his moonlighting team. In addition, he wanted $500 which would be due the following day when he returned with the marked set of drawings.
Mr. Cajacob advised the Respondent that he could not produce that amount without the approval of the project owner and that he would need an invoice from Respondent to support his request. The Respondent then left the office with an unmarked
set of drawings and stated that he would contact Mr. Cajacob later after he had spoken with his team members. Before leaving, Respondent told Cajacob and Stanton that their meeting should be held in confidence. At this point, Cajacob began to have his doubts about the propriety of the conversation but decided that he would contact HRS on that Monday and determine whether the Respondent's proposal was an appropriate way to proceed.
Later that day, the Respondent telephoned Mr. Cajacob at home and advised him that without the full $1,000 up front, the moonlighting team could not provide the services they were offering. During this telephone conversation, Mr. Cajacob refused to provide the $1,000 up front and asked the Respondent to return the plans so that the normal procedure could be followed. At that point, Mr. Cajacob began to feel nervous and uneasy about the Respondent's proposal
The following Monday or Tuesday, Mr. Cajacobe received a note from his secretary stating that Respondent had called and that the plans had been dropped off at a nearby Holiday Inn. Mr. Cajacob's secretary picked up the plans.
After the return of the plans, Cajacob received several telephone calls and at least one letter from Respondent stating each time that he (Respondent) was very sorry, he had made a terrible mistake and requesting that Cajacob forgive him.
On September 10, 1984, Mr. Cajacob, after discussing the incident with his partner, Mr. MacMahon, called Mr. Rosenvold in Jacksonville and apprised him of Respondent's contact. Thereafter, Mr. Rosenvold called Mr. Hunton and advised him of the complaint that Respondent had contacted the firm of MacMahon and Cajacob in Deland. At Rosenvold's request, Hunton investigated it. On Tuesday, September 11, 1984, Hunton and the surviving partner, Brady, met with Respondent and, effective September 12, temporarily suspended him while the matter was being investigated. The Respondent was terminated on September 18, 1985.
Respondent's moonlighting team consisted of himself, and two other people who were going to review the electrical and mechanical aspects of the plans. The moonlighting team would have based their work on their own knowledge and Respondent did not intend to let them use the list of comments prepared by the MFC Reviewing Team.
Respondent did not advise Hunton or Mr. Rosenvold that he intended to contact MacMahon or Cajacob regarding The Cloisters. Likewise, neither Hunton nor Mr. Rosenvold authorized the contact with MacMahon and Cajacob.
After a turn-down or disapproval from HRS, the design professionals may resubmit new plans directly to HRS in Jacksonville. The instance of turn-downs in plans is rare. Only about 10%-15% of plans reviewed by MFC are disapproved. The Cloisters of Deland project had been disapproved five (5) times previously.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject of, this proceeding. §120.57(1), Florida Statutes (1983).
The legislature has found that:
"Improper design and improper construction supervision by architects of buildings primarily designed for human habitation or use present a significant threat to the public." §481.201, Florida Statutes.
The Department of Professional Regulation, Board of Architecture, is charged with the responsibility of regulating the practice of architecture pursuant to Chapter 481, Florida Statutes. The Respondent is charged with a violation of S481.225(1)(i), Florida Statutes and §481.225(1)(j), Florida Statutes. The pertinent statutes and rules involved in this case are as follows:
§481.225, Florida Statutes (1983):
"(1) The following acts constitute grounds for disciplinary actions . may be taken:
Upon proof that the licensee is guilty of . . . misconduct in the practice of architecture
Violation of any rule adopted pursuant to this act or Chapter 455 "
{b) Rule 21B-12.01, Florida Administrative Code:
(6) . Misconduct in the practice of architecture shall include but not be limited to:
(c) Knowingly becoming involved in a6 conflict of interest as to an employer or client without the permission of the client or employer . . .
Soliciting or accepting gratuities, directly or indirectly, from contractors, their agents, or other parties dealing with the architect's client or employer in connection with work for which the architect is responsible without the knowledge of the architect's employer or client;
Violation of any law of the state of Florida directly regulating the practice of architecture:
(i) Undertaking any activity, having any undisclosed significant financial or other interest, or accepting any contribution that either compromises professional judgment or prevents any architect from serving in the best interest of his client or employer . . .
Thus, the definition of misconduct in the Florida Administrative Code presents a two-edged sword for the wrong- doer. Any architect who commits misconduct pursuant to
§481.225(1)(i) and its statutory definition found in Rule 21B- 12.01, Florida Administrative Code is automatically and necessarily also guilty of a violation of §i81.225(1)(j), Florida Statutes. (Violation of any rule adopted pursuant to Chapter 481).
The Petitioner has established by clear and convincing evidence that the Respondent is guilty of misconduct in the practice of architecture and of violating several Rules adopted pursuant to Chapter 481.
The Respondent is guilty of undertaking an activity that compromised his professional judgment and prevented him from serving the best interest of his client or employer, and guilty of knowingly becoming involved in a conflict of interest as to an employer or client without the permission of the employer or client, in violation of Rules 21B-12.01(6)(c) and (i), Florida Administrative Code. The Respondent was required to evaluate plans submitted by the design professionals to his employer, MFC, pursuant to MFC's consultant contract with HRS. By becoming involved with the design professionals in the manner which Respondent did, a conflict of interest was created between the Respondent's obligation to provide objective information to his
employer and his obligation to provide "moonlighting" services to the design professionals. It is not difficult to see that Respondent's professional judgment may have been impaired and he may have been prevented from serving the best interest of his employer, MFC. If the design professionals had not gone along with Respondent and not filed a complaint, they might reasonably expect some unjust disfavor by Respondent in reviewing their work in pending and subsequent submittal of plans. If the design professionals- had gone along with the moonlighting service and paid for it, they might reasonably expect that their work would be favored by the official reviewer, which was the Respondent.
Thus, the likelihood that the Respondent's interpretation of applicable building codes would be subject to outside influences was great and beyond question. The Respondent's offer of "moonlighting" services to MacMahon and Cajacob was definitely not in the best interest of Respondent's employer, MFC, or his client, HRS.
The Petitioner has failed to show, by clear and convincing competent substantial evidence, that the Respondent solicited gratuities, directly or indirectly, from parties dealing with his client or employer in connection with work for which he was responsible, in violation of Rule 21B-12.01(6) (e), Florida Administrative Code. A gratuity is defined as "something acquired without bargain or inducement . . . something given freely or without recompense; something voluntarily given in return for a favor or especially a service, hence a bounty; a tip; a bribe." Black's Law Dictionary Revised Fourth Edition.
The Respondent was offering his moonlighting services for a fee and was not attempting to obtain a benefit or payment without actual service. Thus, the Respondent cannot be said to have solicited gratuities from the design professionals. The Respondent was offering a service to MacMahon and Cajacob in exchange for a fee.
Based on the foregoing Findings of Fact and Conclusions of Law it is recommended that:
DONE and ORDERED this 9th day of January, 1986 in Tallahassee, Leon County, Florida.
W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1986.
Joseph A. Scarlett, Esquire Joseph R. Clark, Esquire
Salvatore A. Carpino, Esquire General Counsel
J. W. Hendry Executive Director Board of Architecture
The following are my specific rulings on the proposed findings of fact submitted by the parties in this case.
Accepted; see R.O. paragraph 1.
Accepted; see R.O. paragraphs 3 & 4.
Accepted; see R.O. paragraphs 3 & 4.
Accepted; see R. O. paragraph 5.
Accepted; see R.O. paragraph 8.
Accepted; see R.O. paragraphs 6 & 7.
Accepted; see R.O. paragraph 8.
Accepted; see R. O. paragraph 4.
Accepted; see R. O. paragraph 3.
Rejected as irrelevant.
Accepted; see R. O. paragraph 8.
Accepted; see R.O. paragraph 8.I
Accepted; see R.O. paragraph 8.
Accepted; see R.O. paragraph 9.
Accepted; see R.O. paragraph 9.
Accepted; see R.O. paragraph 13.
Accepted; see R.O. paragraph 14.
Accepted; see R.O. paragraph 8.
Accepted; see R.O. paragraph 7.
Partially accepted; see R.O. paragraphs
11 and 12; matters not contained therein are rejected as subordinate.
Accepted; see R.O. paragraph 12.
Rejected as not supported by credible evidence.
Accepted; see R.O. paragraph 12.
Accepted; see R.O. paragraph 12.
Accepted; see R.O. paragraph 11.
Accepted; see R.O paragraph 12.
Accepted; see R.O. paragraphs 11 and 12.
Accepted; see R.O. paragraph 13.
Rejected as subordinate.
Partially accepted; see R.O. paragraph 14. Matters not included therein are rejected as subordinate and unnecessary.
Accepted; see R.O. paragraph 14.
Not included in R.O. because subordinate.
Not included in R.O. because subordinate.
Rejected as subordinate.
Not included in R.O. because subordiante.
Accepted; see R.O. paragraph 13.
Accepted; see R.O. paragraph 14.
Not included in R. O. because subordinate.
Not included in R.O. because subordinate.
Accepted; see R.O. paragraph 15.
Accepted see R.O. paragraph 15.
Accepted; see R.O. paragraph 14.
Partially accepted; see R.O. paragraph 16. Matters not included are considered subordinate.
Accepted; see R.O. paragraph 16.
Accepted; see R.O. paragraph 16.
Accepted; see R.O. paragraph 16.
Accepted; see R.O. paragraph 17.
Accepted; see R.O. paragraph 17
Not included in R.O. because subordinate.
Accepted; see R.O. paragraph 18.
Accepted; see R.O. paragraph 18.
Not included in R.O. because subordinate.
Not included in R.O. because subordinate.
Accepted; see R.O. paragraph 19.
Accepted; see R.O. paragraph 19.
Accepted; see R.O. paragraph 20.
Not included in R.O. because subordinate.
Not included in R.O. because subordinate.
Accepted; see R.O. paragraph 21.
Partially accepted; see R.O. paragraph 21. Matters not included therein are considered subordinate.
Rejected as irrelevant.
Rejected as irrelevant.
Rejected as a recitation of testimony
Rejected as not supported by credible evidence.
Rejected as a recitation of testimony
Rejected as a recitation of testimony
Rejected as not supported by credible evidence.
Rejected as a recitation of testimony.
Rejected as a recitation of testimony.
Accepted; see R.O. paragraphs 13,
16 and 23
Rejected as a recitation of testimony.
Rejected as a recitation of testimony.
Rejected as a recitation of testimony.
Rejected as a recitation of testimony.
Accepted; see R.O. paragraph 17.
Rejected as subordinate.
Partially accepted; see R.O. paragraph 17. Matters not included therein are rejected as subordinate and irrelevant.
Accepted; see R.O. paragraph 16.
Partially accepted; see R.O. paragraphs 13 and 16. Matters not included therein are rejected as irrelevant and subordinate.
Accepted; see R.O. paragraph 24.
Rejected as recitation of testimony.
Accepted; see R.O. paragraph 24.
Accepted; see R.O. paragraph 24.
Accepted; see R.O. paragraph 22.
Accepted; see R.O. paragraph 22.
Rejected as irrelevant, subordinate and cumulative.
Rejected as subordinate and irrelevant.
Rejected as irrelevant.
Accepted; see R.O. paragraph 25.
Rejected as recitation of testimony and a conclusion of law.
Rejected as a recitation of testimony and a conclusion of law.
Partially accepted; although Respondent did teach a course in architectural ethics, at one point in his career, there was no evidence to indicate
the specific content of the course on whether "conflicts of interest" were covered.
