STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH A. LERNER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3052

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ARCHITECTURE ) AND INTERIOR DESIGN, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on September 18, 1991, Jacksonville, Florida, before Stephen F. Dean, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph A. Lerner

8410 Papelon Way

Jacksonville, Florida 32217

For Respondent: Arthur R. Wiedinger, Jr., Esquire

Department of Legal Affairs The Capitol, Suite 1603

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

1. The first issue in this case is whether Joseph A. Lerner has abandoned his application for licensure without examination as an interior designer.

   
   

2. The second issue is whether the Petitioner has the requisite experience and whether the Petitioner was ever a criminal defendant.

PRELIMINARY STATEMENT

At the hearing, the Petitioner testified on his own behalf, and introduced three exhibits. The Respondent introduced two exhibits which included the Petitioner's file and the Petitioner's responses to interrogatories.

FINDINGS OF FACT

1. The Petitioner timely filed his application for licensure as an interior designer with the Board of Architecture and Interior Design (the Board) on January 2, 1990. See Respondent's exhibit 2.

2. The Board advised the Petitioner on February 1, 1990, that his application was incomplete and requested additional information from the Petitioner by forwarding to him a copy of supplemental question 11. See Respondent's exhibit 2.

   
   

3. The Board advised the Petitioner by letter dated June 7, 1990, that he had not provided the information requested on February 1, 1990. See Respondent's exhibit 2.

   
   

4. On November 21, 1990, the Board advised the Petitioner that his application would be deemed abandoned unless he completed his application within

   30 days by answering completely questions 7 and supplemental question 11 on the application. See Respondent's exhibit 2.

   
   

5. On December 3, 1990, the Board advised the Petitioner, by certified mail, of the information previously provided to him by letter on November 21, 1990. The Petitioner signed a receipt for the certified letter on December 5, 1990. See Respondent's exhibit 2.

   
   

6. The Petitioner supplied no further information to the Board after filing his initial application on January 2, 1990.

   
   

7. The Board advised the Petitioner by letter dated March 20, 1991, and by certified letter on March 22, 1991, that his file had been deemed abandoned and that he had 21 days from receipt of the letter to request a formal hearing pursuant to Chapter 120, Florida Statutes. See Respondent's exhibit 2. The Petitioner received this notice, as indicated by his signed receipt, and timely requested a formal hearing by letter to the Board dated April 15, 1991.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The issue of application for licensure and licensure generally are controlled by Section 120.60, Florida Statutes, and the licensure of an interior designer without examination specifically is controlled by Section 21 of Chapter 88-383, Laws of Florida, as amended by Chapter 89-19, Laws of Florida. This provision was not codified in Florida Statutes because it is time-limited and applies only to a limited group of potential applicants.

   
   

10. Section 89-19, Laws of Florida, provides that any person who applies for licensure as an interior designer prior to January 1, 1990, shall be licensed without examination if the applicant has used or been identified by the title "interior designer" and has at least six years of interior designing experience. The Petitioner made a timely application for licensure as an interior designer under this grandfathering provision. -The Board has taken the view that the Petitioner "abandoned" his application because he did not provide additional information which the Board requested and that the merits of the application were not at issue.

    
    

11. Section 120.60, supra, provides, in pertinent part, as follows:

    
    

    (2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with rea-

    sonable dispatch and with due regard to the rights and privileges of all affected par- ties or aggrieved persons. Within thirty days after receipt of an application for a license, the agency shall examine the appli- cation, notify the applicant of any apparent errors or omissions, and request any addi- tional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional informa- tion shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period.

    Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law. The 90-day or shorter time period will be tolled by the initiation of a proceeding under s. 120.57 and will resume 10 days after the recommended order is submitted to the agency and the parties. Any application for a license which is not approved or denied within the 90-day or shorter time period, within 15 days after conclusion of a public hearing held on the application, or within 45 days after the recommended order is submitted to the agency and the parties, whichever is latest, shall be deemed approved; and, subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued.

    
    

12. After the Petitioner timely filed an initial application for licensure, the Board requested additional information of the Petitioner within

    30 days of receipt of his initial application and advised the Petitioner of apparent errors and omissions in his application. The Petitioner did not supply the information sought by the Board.

    
    

13. Under these circumstances, the language of Section 120.60, supra, creates a dilemma because it provides, "Every application for licensure shall be approved or denied within 90- days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions..." The legislature assumed that the applicant would reply, and did not specifically address what to do if the applicant did not reply.

    
    

14. The following actions could be taken when the applicant does not respond:

    
    

    1. The Board could have denied the Petitioner the license he sought on the merits of the application as it stood with its omissions. In such a case, the Petitioner would have been entitled to a de novo hearing upon the denial at which he would have been able to present additional information and perfect his application.

    2. The Board's action of repeating its request for additional information is not prohibited by statute if the initial request was made within thirty days of the initial application and the Petitioner did not responded to the request. Under the aforestated circumstances, the Board is not required to approve or deny the application, and may continue to request information. While the Board is requesting information, the application stands in limbo until either the applicant or the Board forces the issue by altering his or its response.

       
       

15. The following actions can force a case from this procedural limbo:

    
    

    1. Instead of making a response, an applicant could seek a writ of mandamus to the Board for a decision about the application upon its merits. If the application was denied, an applicant would be entitled to a de novo administrative hearing upon the merits of the application.

       
       

    2. In the absence of a response by the applicant, the Board could (a) make a decision upon the application upon its merits, in which case the de novo hearing upon the merits could ensue, or (b) give notice of abandonment of the application as it has done in this case.

       
       

16. When the Board declares an application abandoned, it must show that the applicant intended to cease pursuing licensure. Such a showing is difficult to prove in the absence of an expressed statement of abandonment, and impossible to infer when the applicant requests an administrative hearing on the application as Petitioner has done in this case. If the applicant has not abandoned the application, the matter is joined on the merits of the application. Through this process, the concept of a point of entry to consider the merits of the application is preserved as required under the case law. Narrowing the issues to something short of the application's merits, as suggested by the Board, cannot be reconciled with the requirements for a meaningful opportunity to be heard upon the merits of the pending application.

    
    

17. In his responses to the Petitioner's Request For Admissions and at hearing, the Petitioner presented evidence and provided information which shows that he had significant experience as an interior designer and presented himself to the public as such for over six years prior to his application. At the hearing, the Petitioner clearly indicated that he had never been a criminal defendant. The Respondent did not rebut this evidence. The Petitioner addressed the two issues which had been raised by the Board and proved that he met both criteria addressed. Therefore, having shown that he was of good character (never a criminal defendant) and possessed the requisite experience, the Petitioner meets the criteria of Chapter 89-19, Laws of Florida, for licensure without examination.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That Petitioner be awarded a license without examination pursuant to Chapter 89-19, Laws of Florida, and Section 120.60(2), Florida Statutes.

DONE and ENTERED this 16th day of December, 1991, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1991.

COPIES FURNISHED:

Joseph A. Lerner 8410 Papelon Way

Jacksonville, FL 32217

Arthur R. Wiedinger, Jr., Esq. Department of Legal Affairs The Capitol, Suite 1603 Tallahassee, FL 32399-1050

Angel Gonzalez, Executive Director Department of Professional Regulation Board of Architecture and Interior Design 1940 North Monroe Street

Tallahassee, FL 32399-0792

Jack McRay, Esq.

General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY ORDER FOR REMAND

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF ARCHITECTURE AND INTERIOR DESIGN

JOSEPH A. LERNER,

Petitioner,

vs. DOAH CASE NO. 91-3052

DEPARTMENT OF PROFESSIONAL REGULATION,

Respondent.

/

ORDER FOR REMAND

THIS CAUSE came on to be heard before the Florida State Board of Architecture and Interior Design at a regularly scheduled meeting held in Tallahassee, florida, on January 15, 1992 pursuant to a Recommended Order dated December 16, 1991 by Hearing Officer Stephen F. Dean. Exeptions have been filed to the Recommended Order by Respondent relating to the Hearing Officer's determination that Petitioner had not abandoned his application for licensure by exception under the provisions of Chapter r89-19, Laws of Florida, as well as to the finding by the Hearing Officer that Respondent had met the criteria in the provisions of Chapter 89-19, Laws of Florida, for licensure by exception by showing that Petitioner had in fact, engaged in the practice of interior design and was known as an interior designer for six years prior to January 1, 1990.

The Board, having reviewed the Exceptions filed by Respondent, herebny determines that the Hearing Officer's finding with regard to the "abandonment of Petitioners application for licensure by exception is supported by competence and substantial evidence, and reflects an appropriate determination under the circumstances in this case.

As to the Hearing Officers finding, however, that Petitioner had shown by competent substantial evidence, that he had practiced for six years as an interior designer and been known as an interior designer for six years prior to January 1, 1990, it is hereby determined that Respondent's Exception is well taken. At the initiation of the hearing, it appears that the Hearing Officer determined to limit the issues to be heard, to the question as to whether or not Petitioner had in fact abandoned his application. The transcript clearly reflects that, relying on the Hearing Officer's determination to limit the issues, Respondent dismissed its expert witness, apparently at the Hearing Officers urging and in light of the perceived irrelevance of her testimony, given the limitation of the issues. Further, it appears that while Petitioner did testify as to his qualifications and his perceived belief that he met the requirements for licensure by exception, it is clear that Respondents attorney, in light.of the initial ruling by the Hearing Officer was under the impression

that the only issue to be determined at the administrative hearing was whether or not Petitioner had in fact abandoned his application, As such therefore, the Hearing Officer's determination in his Recommended Order that Petitioner met the requirements for licensure by exception not only contains an incorrect statement of the actual issues at the hearing, but also makes no specific findings of fact as to how the Hearing Officer determined that Petitioner met the requirements for licensure under Chapter 89-19, Laws of Florida.

As such therefore, it appears first, insofar as the Hearing Officer has made no findings of fact setting forth the basis upon which he believed that Petitioner is entitled to licensure by meeting the requirement of six years of practice as an interior designer prior to January 1, 1990, as required by Section 120.598(1)(b)9, F.S., and second, because Respondent was apparently inadvertently misled by the Hearing Officer into believing that the only issue be tried at the September 18, 1991 hearing, was the question of whether or not Petitioner had abandoned his licensure application, and therefore Respondent did not proceed on the merits of Petitioners application, and indeed, released its witness, it appears appropriate (see Cohn v. Department of Professional Regulation, Board of Pharmacy, 477 So.2d 1039 (3rd DCA 1985), that this cause shall be and is remanded to the Hearing Officer for additional findings of fact relating to the merits of Petitioner's application, at which time, Respondent shall have the opportunity, should it wish, to present expert testimony as to its opinion of whether or not Petitioners experience meets the requirements for licensure by exception under the provisions of Chapter 89-19, Laws of Florida.

WHEREFORE, it is hereby ORDERED and ADJUDGED that this cause be and the same is hereby REMANDED to the Division of Administrative Hearings for the reopening of the hearing in the above-mentioned cause, at which time both Petitioner and Respondent will address the issue of whether or not Petitioner can present sufficient evidence to prove that he has met the requirements for licensure by exception under the provisions of Chapter 89-19, Laws of Florida, and Respondent shall have the opportunity to present any evidence it deems appropriate to rebut the assertions of Petitioner.

DONE and ORDERED this 4th day of March, 1992, by the Florida Board of Architecture and Interior Design.

SUSAN SMITH, CHAIRPERSON

Copies furnished to:

Arthur r. Wiedinger, Jr., Esquire Joseph A. Lerner

================================================================= ORDER ACCEPTING REMAND

AND DEFINING ISSUES ON REMAND

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH A. LERNER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3052

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ARCHITECTURE ) AND INTERIOR DESIGN, )

)

Respondent. )

)

ORDER ACCEPTING REMAND AND DEFINING ISSUES ON REMAND

The Board of Architecture and Interior Design remanded the above-styled case to the Division because it determined that its counsel was inadvertently misled as tot the issues and had dismissed his expert witness on the practice of interior design. The Order of Remand states, in part, that the matter is remanded:

For reopening of the hearing in the above- mentioned cause, at which time the Petitioner and Respondent will address the issue of whether or not Petitioner can present sufficient evidence to prove he has met the requirements for licensure by exception..., and Respondent shall have the opportunity present any evidence it deems appropriate to rebut the assertations of the Petitioner.

Delaying determination of the scope of the issues until the hearing will be unfair to the parties. Therefore, this Order will define the scope of the final hearing on remand.

The Board, having determined that the first hearing was limited to the issue of abandonment, has remanded the case for additional proceedings on the issue of Petitioner's qualifications. Because Petitioner has the burden to go forward*

*NOTE: The remaining text of this Order is no longer available at the Division, and therefore not a part of this ACCESS document.

DONE and ENTERED this 13th day of March, 1992, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1992.

COPIES FURNISHED:

Joseph A. Lerner 8410 Papelon Way

Jacksonville, FL 32217

Arthur R. Wiedinger, Jr., Esq. Department of Legal Affairs The Capitol, Suite 1603 Tallahassee, FL 32399-1050

Angel Gonzalez, Executive Director Department of Professional Regulation Board of Architecture and Interior Design 1940 North Monroe Street

Tallahassee, FL 32399-0792

Jack McRay, Esq.

General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH A. LERNER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3052

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ARCHITECTURE ) AND INTERIOR DESIGN, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL*

* NOTE: According to the Division's docket sheet, a Recommended Order of Dismissal was issued on 10/29/92. This Order

is not available at the Division, and therefore not a part of this ACCESS document.

Docket for Case No: 91-003052

Orders for Case No: 91-003052