STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

LEE MABIRE AND LEE MABIRE )

COMPANY, )

)

Respondents. )

Case No. 03-0489

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in Pensacola, Florida, on January 12, 2004. The appearances were as follows:

APPEARANCES

For Petitioner: David K. Minacci, Esquire

Smith, Thompson, Shaw & Manausa, P.A. 2075 Centre Pointe Boulevard Tallahassee, Florida 32308-4893

For Respondents: Lee Mabire, pro se

4440 Bayou Boulevard, No. 25

Pensacola, Florida 32503

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Respondents practiced architecture without being appropriately licensed, as alleged in the Administrative Complaint, and, if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

This cause arose upon the Petitioner, the Department of Business and Professional Regulation (Department) initiating an administrative complaint alleging that the Respondents provided architectural services without being duly-registered or certified to engage in the practice of architecture. The Respondents disputed the allegations of the complaint and requested a formal proceeding and hearing. The cause was referred to the Division of Administrative Hearings and ultimately to the undersigned administrative law judge. A formal hearing was set but was continued for good cause.

Thereafter the hearing was scheduled for January 12, 2004.

The cause came on for hearing as noticed. The Petitioner presented the testimony of Lavonia Ives, Oscar Woody, and

Lee Mabire. The Petitioner submitted nine exhibits all of which were admitted into evidence. The Respondents presented the testimony of Lee Mabire, the Respondent, and did not submit any exhibits into evidence. Upon conclusion of the proceeding a transcript thereof was ordered and the parties requested and

extended schedule for submitting proposed recommended orders. The Proposed Recommended Orders have been submitted and considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with the responsibility of regulating entry into the practice of architecture and the practice of architecture, including regulation and enforcement concerning proper certification and licensure with regard to the practice of architecture in accordance with Chapters 20, 455, and 481, Florida Statutes. The Respondents are not certified or licensed as an architect or architectural business in accordance with Chapter 481, Part I, Florida Statutes.

2. The Respondent, Lee Mabire, is the sole stock holder and officer of the Respondent, Lee Mabire & Company. Sometime in September 2001, the Respondent, Lee Mabire, was contacted by Mike Rush to provide drawings for a commercial construction project located at 2621 Michigan Avenue, in Pensacola, Florida. The property in question is owned by Lavonia Ives.

3. Mike Rush, the builder, had commenced construction of the renovations requested by Ms. Ives, the owner, but the work on the renovations had ceased because Mr. Rush had never obtained a building permit. Ms. Ives was renovating the

   property because she intended to lease it to a biomedical company.

4. Mr. Rush needed plans drawn for the project in order to obtain the necessary building permit. Mr. Rush provided the Respondent with a floor plan at the initial meeting he scheduled with the Respondent, Mr. Mabire. The floor plan included a reception area, a conference room, repair shop, storage, warehouse, kitchen, bathroom, and five offices. The project clearly would cost in excess of $25,000.00 as described by

   Mr. Rush in his request for plans made to the Respondent.

   
   

5. The building was designed to include a reception area that had a door open to the public. The Respondent drafted the plumbing, mechanical, and electrical drawings for the project.

6. Oscar Woody, a licensed architect, first became aware of the Ives project through the Respondent. The Respondent gave Mr. Woody several sheets of drawings that he had already prepared. Mr. Woody was responsible for assuring that the plans for the building complied with the American With Disabilities Act. The Respondent is not an employee of Woody or Oscar Woody & Associates and has never received a W-2 form from either of those entities.

7. On November 5, 2001, Mr. Woody signed and sealed the plans prepared for the Ives project. The plans which Mr. Woody signed and sealed as an architect had been prepared by the

   Respondent. The plans included three pages, a floor plan, an electrical plan, and an HVAC plan.

8. The plans for the project were submitted to the city building department for permitting on November 5, 2002.

   Mr. Rush told the owner, Ms. Ives, that the Respondent had prepared the architectural drawings for the project. On November 5, 2001, at a meeting outside the building department office, the Respondent gave the plans to Ms. Ives. This was the first time Ms. Ives had ever met the Respondent in person.

9. Prior to the hearing, Ms. Ives had never met Mr. Woody nor had any discussions with Mr. Woody. On that same day, November 5, 2001, Ms. Ives gave the Respondent a check in the amount of $2,400.00 and, at the request of the Respondent, left the payee portion of the check blank. The Respondent later filled in Oscar Woody & Associates as the payee of the check.

10. Ms. Ives requested that the Respondent prepare a receipt for the services he provided an evidencing that payment had been made. The Respondent prepared and signed the receipt for the payment dated December 4, 2001, that describes the scope of services as "Comm. Bldg. Rem. Plans to code." Mr. Woody's name does not appear anywhere on the receipt. The building department required Mr. Woody to revise the electrical and HVAC sheets contained in the plans which he had signed and sealed. Those revised drawings were prepared by the Respondent, however.

    Mr. Woody signed and sealed the revised drawings on December 11, 2001. On that same day, Ms. Ives gave the Respondent a check in the amount of $125.00 made payable to Lee Mabire Company. The memo on that checks states "revised blueprints, Michigan Avenue."

11. The Respondent provided Ms. Ives another receipt for the payment and described the services as "revised blueprints to meet code."

12. Throughout this sequence of events, the Respondent was the only person Ms. Ives had contact with regarding the architectural drawings that were filed with the building department, other than Mr. Rush and personnel from the building department itself.

13. On February 12, 2002, Don Mathys, filed a complaint with the department against the Respondents for drawing and submitting plans to the Escambia County Building Department for a commercial project. Mr. Mathys was previously a Florida licensed architect, who was chief plans examiner for the Escambia County Building Inspections Department at the time the complaint was filed.

14. The Respondent, Mr. Mabire, has previously been disciplined by the department for the unlicensed practice of contracting and has received a Notice and Order to Cease and Desist as to that disciplinary action on February 18, 2000. The

    Notice and Order to Cease and Desist pertained to a set of drawings prepared by the Respondent for an office building.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57, Fla. Stat.

16. The Petitioner is an agency of the State of Florida charged with regulating the practice of architecture, in accordance with Chapters 455 and 481, Florida Statutes.

17. The Respondents are subject to penal sanctions in this proceeding, if the allegations are proven, including the imposition of an administrative penalty. Therefore, the Department has the burden of proving the allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Company, 670 So. 2d 932 (Fla. 1996).

18. Section 481.223(1)(a), Florida Statutes, prohibits a person from knowingly practicing architecture unless that person is an architect or a registered architect.

19. "Architecture" is defined as follows:

    
    

    . . . the rendering or offering to render services in connection with the design and construction of structure or group of structure which have as their principal purpose human habitation or use, and the utilization of space within and surrounding such structures. These services include

    planning, providing preliminary study designs, drawings, and specifications, job- site inspection, and administration of construction contract.

    
    

    See § 481.203(6), Fla. Stat.

    
    

20. Pursuant to Section 481.223(1)(a), Florida Statutes and Section 481.203(6), Florida Statutes, it is a violation to offer to provide architectural services when the person is not the holder of a valid license to practice architecture.

21. It is undisputed that Lee Mabire does not hold any sort of license to practice architecture. The offering to complete design work and providing such design work constitutes engaging in the practice of architecture as defined in Section 481.203(6), Florida Statutes.

22. Such offering to complete work and the work performed by the Respondents does not fit within any exception to the requirement that a person be licensed as an architect in order to so practice. See § 481.229, Fla. Stat.

23. Section 481.229(1)(c), Florida Statutes, provides an exception to the requirements that a person be licensed as an architect as follows:

    Any other type of building costing less than

    $25,000.00, except for a school, auditorium, or other building intended for public use, provided that the services of a registered architect shall not be required for minor school projects pursuant to Section 1013.45.

24. The Respondent has interpreted Section 481.229(1)(c), as granting an exception for all buildings or projects costing less than $25,000.00. A plain reading of the statutory language however, clearly shows that this exception does not apply to buildings intended for public use. Section 11.12 of the Florida Building Code defines "public use" as interior or exterior rooms or spaces that are made available to the general public. The unrefuted testimony by deposition (in evidence) of

    Mr. Don Mathys, a licensed architect, and the building plans approval official for Escamiba County at times pertinent hereto, reveals that his definition of "public use" is similar and that if the building or project in a building in question will result in a structure open for the general public to enter into, then it is a "public use" for that structure or construction project.

25. Thus the Respondent's reliance on Section 481.229(c), as to the $25,000.00 exception referenced above, does not really fit the facts of this case. That statutory section is not a blanket exception for all buildings or projects costing less than $25,000.00. This is true because the building project in question, whether or not it cost $25,000.00 or less, was intended for public use. Because of that the $25,000.00 threshold does not apply at all. Moreover, although the testimony of architect Oscar Woody indicates that he never became aware of any receipts for material furnished or work done

    on the subject project which totaled more than $21,000.00 or

    
    

    $22,000.00, the testimony of architect Don Mathys indicates that the project cost much more than that and probably at least in the realm of $50,000.00. The $25,000.00 exemption amount applied to the building project in question was the pivotal issue, it has not been clearly established in this evidentiary record what the cost of the building was, although it likely exceeded $25,000.00.

26. However, it has been established that the building was intended for public use, (even though it is a private business involved in repair or servicing of medical equipment) because it is accessible to the general public. Because the building was proven to be for "public use," the design work and plans prepared by the Respondent required that he be licensed as an architect. He is not and was not so licensed and therefore, it has been established that he violated Section 481.223(1)(a) and 491.219(2), Florida Statutes by practicing architecture when neither he nor his business entity held a valid license to provide architectural services and he contracted to provide such services and accepted payment for them involving commercial property. Accordingly the Department has met its burden of proof.

27. Subsections 455.228(1)(3)(a) and (c), Florida Statutes authorize the imposition of an administrative penalty of less

than $500.00 not more than $5,000.00 "per incident" for the unlicensed practice of a profession and to recover the costs of investigation. There is no persuasive evidence that the unlicensed practice occurred in more than one incident. The costs of the investigation are in evidence as the Petitioner's Exhibit Nine in the form of an affidavit of costs submitted by counsel for the Petitioner. They amount to $2,111.25.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the parties it is, therefore,

RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that the Respondents Lee Mabire and Lee Mabire Company violated the above referenced statutory provisions concerning the unlicensed practice of architecture; that an administrative fine in the amount of $2,000.00 be imposed against the Respondents, and that they be required to pay the costs, other than attorney's fees, in the amount of $2,111.25.

DONE AND ENTERED this 8th day of June, 2004, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings this 8th day of June, 2004.

COPIES FURNISHED:

David K. Minacci, Esquire

Smith, Thompson, Shaw & Manausa, P.A. 2075 Centre Pointe Boulevard Tallahassee, Florida 32308-4893

Lee Mabire, pro se

4440 Bayou Boulevard, No. 25

Pensacola, Florida 32503

Sherry Landrum, Executive Director Architecture and Interior Design Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Nancy Campiglia, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0729

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 03-000489

Orders for Case No: 03-000489