STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA STATE BOARD OF )
ARCHITECTURE, )
)
Petitioner, )
)
vs. ) CASE NO. 76-249
)
WALTER H. MELODY, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in the above-captioned matter, after due notice, at St.
Petersburg, Florida, on August 17 & 18, 1976, before the undersigned Hearing Officer.
APPEARANCES
For Petitioner: Selig I. Goldin, Esquire
Post Office Box 1251 Gainesville, Florida 32602
For Respondent: William A. Patterson, Esquire
Legal Building, Suite 208
447 3rd Avenue North
St. Petersburg, Florida 33701 ISSUE PRESENTED
Whether Respondent's Certificate of Registration as a Architect should be suspended or revoked for alleged violation of Section 467.14(1)(b), Florida Statutes and Rule 21B-5.01(3), Florida Administrative Code.
At the commencement of the hearing, Petitioner withdrew Count II of its Administrative Complaint.
FINDINGS OF FACT
Respondent holds Certificate of Registration Number 2176 as an Architect issued by Petitioner.
On May 6, 1969, Wayne F. Betts, State School Board Architect, sent an office memorandum to Floyd T. Christian, State Commissioner of Education, concerning construction of relocatable facilities under the Federal Migrant Program using federal funds that had to be committed prior to June 30, 1969. Betts recommended that an architect be employed to prepare the drawings and specifications for these facilities. On May 8, 1976, Christian, in a memorandum to Betts, stated that the suggestion that "an architect be employed to assist in the preparation of drawings and specifications for the trailers to be used for
migrant education is a good one and I will see that it is done." He further stated therein "we do have someone in Gainesville working on specifications and plans now, and I will take the responsibility to see that an architect is employed and have you review them before they are sent out for bids."
The units to be constructed were mobile migratory kindergarten units that consisted of trailer classrooms for prekindergarten children to be used at various places throughout the state. The individual referred to in Gainesville in Christian's memorandum was James T. Glisson, an employee of the University of Florida under a federal grant to design and develop such units.
Betts believed that the Respondent thereafter was hired by the Department of Education to prepare preliminary and final drawings and specifications for the mobile units, and that he also was employed as a consultant to the Department to review bids submitted on the project. Although it was customary for a standard architect's contract (AIA) to be utilized for the foregoing purposes, Betts never saw such a contract with the Respondent for his services. During subsequent weeks, Betts conferred with the Respondent on drawings and plans submitted for approval and gave final architectural approval for the project.
Thereafter, Respondent reviewed the bids which had been submitted to the state pursuant to advertisement and on June 20, 1969 recommended that the low bidder, National Structures, Inc., not receive the award because its bid was not responsive to the invitation for bids in that it contained certain exceptions that would have contravened legal requirements. Accordingly, he recommended that the award, be made to the next low responsive bidder, American Buildings of Pinellas, Inc. The staff of the Department of Education nevertheless recommended that the low bid be accepted. Commissioner Christian placed the matter before the State Board of Education in a memorandum, dated June 24, 1969, recommending that the award be made to American Buildings unless the low bidder agreed to conform to the plans and specifications. At a subsequent meeting of the board, Christian advised that no such letter had been received and award was made to American Buildings of Pinellas, Inc. for a total sum of $487,329.00. (Testimony of Betts; Petitioner's Exhibits 2,6,10; Respondent's Exhibits 1,2 & 3).
On June 24, 1969, Respondent invoiced the State Department of Education for "architectural consultive services for migratory prekindergarten relocatables for 30 working days" during the period of April 20 through June 23, 1969 for total compensation of $1,500.00. He received a check. in this amount from the State Treasurer, dated August 13, 1969, which he endorsed and placed into a business account in his name on August 26, 1969. On the same date, he issued a check in the amount of $1,500.00 to the Southeastern Engineering Company, his employer, which the latter deposited into its general account.
By letter from Commissioner Christian, dated November 3, 1969, Respondent was commended for his "coordination and leadership and production of laboratory plans and specifications in the initial prekindergarten units" and requested to continue as an architectural consultant at the rate of $50.00 per day in connection with the Florida Migratory Child Compensatory Program. Respondent did so and at various times during 1970 and 1971 invoiced the State Board of Education for further services in the inspection of additional phases of mobile prekindergarten units.
By a memorandum, dated February 25, 1970, from Phillip S. Shaw, Comptroller of the Department of Education to Commissioner Christian, certain
problems in connection with the project were pointed out, including the fact that there had been no contract with the Respondent or with James T. Glisson who had made numerous reports and conducted various inspection trips during the course of the project that normally would have been accomplished by departmental employees. Christian responded to this memorandum by his own of March 2, 1970 wherein he stated that arrangements had been made for Respondent to pay Glisson for the latter's work as a consultant and that the Respondent had been hired as a consultant at $50.00 per day rather than paying an architectural fee which would have cost the Department $30,000.00 or more and since most of the ideas of the design of the trailer were on existing programs. He further pointed out that Respondent had been employed on a continuing consultant basis to design the program mobile laboratory facilities of the migrant education section. (Petitioner's Composite Exhibits 2 & 3, Respondent's Exhibit 7).
Work order no. 260 of Southeastern Engineering Company, dated May 15, 1969, shows Robert Bussey of St. Petersburg, Florida as the client who authorized work in reference to "mobile migratory kindergarten" to "prepare construction drawings, specifications, and bid documents for State Department of Education." It further contains a listing of draftsmen by name, including Respondent, and hours and dates of time attributed to the work thereunder. The initials "W.H.M." appear on the face of the document. An invoice under Respondent's letterhead, dated July 24, 1969, to American Real Estate Management Company, St.' Petersburg, Florida, referencing Work Order Number 260, reads as follows:
Re: Mobile Migratory Kindergarten
To invoice you for a partial payment for pro- fessional services rendered in connection with the contract between American Buildings of Pinellas, Inc. and the Florida State Department of Education.
AMOUNT DUE $2,500.00
A check of the American Real Estate Management Company, dated July 31, 1969 payable to Respondent in the amount of $2,500.00 in payment of the aforesaid invoice was endorsed by the Respondent to Southeastern Engineering Company. Another check issued by the same firm on October 9, 1969 to Respondent in the amount of $2,000.00 for invoice 575 was also endorsed by Respondent to Southeastern Engineering Company. (Petitioner's Exhibits 7,8 & 9).
Respondent testified substantially as follows: I have been a licensed architect in Pinellas County since 1955 and am a member of the American Institute of Architects. In 1969, I was employed as an architect in the firm of Southeastern Engineering Company, St. Petersburg, Florida, at a salary of
$300.00 a week. I held 10 percent of the stock in that firm which was given to me by the firm in order to comply with the law. My sole function in that organization was to be responsible for architectural drawings and plans. I had nothing to do with the maintenance of records in the corporation. This was handled solely by my employer, Mr. King, who was an engineer. In the Spring of 1969, Mr. King told me that I was supposed to get together with Jake Glisson at the Florida State Museum in Gainesville in order to prepare working drawings and specifications of mobile trailers for the migrant section of the State Board of Education. King drew up the work order with Bussey in this matter and when I commenced the job, I did not know immediately that the work was for Bussey. I was not hired directly by the State Department of Education but assumed that
this was done through King. It was my understanding that the drawings were to be done for the use of the State. I thereafter contacted Glisson who gave me rough drawings for the trailers. I prepared preliminary drawings within a week and took them to the migrant section in Tallahassee where I met with Mr. Culton of the migrant section, and other state employees who made recommendations concerning changes. As a result, I revised the drawings to ensure that they conformed to the needs of the State. I was not concerned with the problem of who paid for the work because I was merely on salary. My drawings for the project were approved by Mr. Betts, but most of my dealings at the Department of Education were with Mr. Culton. I knew that my plans would be let out for bid on the project. Joe Roach, Purchasing Agent of the Department, asked me to review the bids that had been received. I did so, and at the time was unaware that American Buildings of Pinellas County, Inc. was in any way associated with Bussey. The man with that firm whom I later dealt with while inspecting construction of the trailers was Vernon Burgess. It was not until 1974 that I learned from Burgess that Bussey had made a deal with Burgess whereby Burgess got a certain percentage of the contract price and Bussey the remainder. I billed the State for $1,500.00 for architectural consultative services and received that amount by check from the State. I deposited the check in my private business account because that was the practice of my firm when dealing with state or county government matters. However, on the same day, I wrote a check in a similar amount to Southeastern Engineering Company. I invoiced and received from American Real Estate Management the sum of $4,500.00 to prepare the plans and specifications for the project. I endorsed checks in this total amount to Southeastern Engineering. My recommendations to the Department of Education for award of the contract were based on valid reasons for not accepting the low bid. No one to my recollection told me to throw out that bid nor was I part of any scheme. After the contract was awarded, I inspected construction, of the various units for the state and billed the state for my time. I later inspected units which were constructed in successive chases of the project involving contracts awarded to other firms. At no time during my dealings with State officials did I inform anyone that Bussey was paying for the plans and specifications. It was my view that both Bussey and the State were my clients and that the State received the benefit of the plans that I drew without paying for them. Although the original drawings which I submitted to the State did not reflect or make reference to American Real Estate Management Company, they did show Work Order 260 thereon. I did not show that work order to anyone at the state offices and, in fact, did not see the work order myself at any time during the project since such forms were handled by others in my firm. However, I was not trying to hide anything because during the period 1969-1974, all of the purchase orders and the bills to American Real Estate Management remained in the offices of Southeastern Engineering Company. No attempt was ever made to destroy any books or records dealing with this matter. My plans later reflected the name "Motivation Systems, Inc." thereon because Bussey and Glisson formed this firm about 1970. (Testimony of Respondent)
CONCLUSIONS OF LAW
Respondent is alleged to have violated Section 467.14(1)(b), Florida Statutes and Rule 21D-5.01(3), Florida Administrative Code, by engaging "in a dishonest practice in that he agreed to and did participate in a fraudulent scheme with various individuals and corporate entities wherein he provided architectural services to the State of Florida, Department, of Education, during the year 1969, when he also performed architectural services to a private concern on the same architectural project for which he was retained by the State of Florida."
Section 467.14(1)(b), provides as follows:
Revocation of registration certifi- cate reinstatement; procedure, process, attorneys, and counsel.-
Any architect's certificate of regi- stration issued in accordance with the provisions of this chapter shall remain in full force until revoked for cause as pro- vided in this chapter. Any architect's registration certificate and current renewal may be suspended for a period not exceeding
12 months, or may be revoked by the unanimous vote of the members of the board sitting, with a minimum of four members, in any hearing for:
* * *
(b) A dishonest practice;
The statute does not define the term "dishonest practice.
Rule 21B-5.01(3), Florida Administrative Code, which during the period in question was Rule 40-3.07(a)2 also provides that suspension or revocation of an architect's certificate by the board may be based on a "dishonest practice."
Rule 21D-9.03, formerly 40-6.03, states: "The rendering by an architect of services of a type below the standard required under these rules is deemed by the Board to be dishonest practice by him; and proof thereof is considered sufficient cause for the revocation or suspension of his certificate."
The theory of Petitioner's case against the Respondent is essentially that he was serving two masters with regard to the mobile classroom project in 1969, without disclosing to the state his employment by a private firm, thereby constituting a conflict of interest. As stated in the charge, he is alleged to have agreed to and participated in a fraudulent scheme for this purpose. Assuming arguendo that such conduct properly falls within the above-stated ground for disciplinary action, i.e., that it was a "dishonest practice", it was incumbent upon Petitioner to establish the Respondent's knowing agreement and participation in such a scheme. Petitioner's case consisted of circumstantial evidence, including the testimony of only one witness, coupled with documentary evidence concerning Respondent's connection with the project. Regardless of the State School Architect's misconception that Respondent had been hired to prepare plans, drawings and specifications for the mobile units, and notwithstanding Commissioner Christian's memorandum of May 8, 1969 indicating that the state would hire an architect for this purpose, the facts show that Respondent was paid for such services by American Real Estate Management Company and not by the State. State payments to Respondent were only for his consultative services in reviewing the bids on the project and subsequent inspection of their construction. This is evidenced by Respondent's invoice to the state for
$1,500.00, representing architectural consultative services for some 30 days from April to June, 1969, and the check in payment thereof by the State.
Further, it is apparent from the testimony that this sum would have been woefully inadequate compensation for the cost of preparing the project plans.
At no time did Respondent bill the State for preparation of drawings. On the other hand, the evidence shows that the cost of preparing the plans was borne by the American Real Estate Management Company in the amount of some $4,500.00
which accrued to the benefit of Respondent's firm, Southeastern Engineering Company, of which he was only an employee, and that he derived no direct financial benefit there from over and above his weekly salary. Therefore, the evidence fails to show double payment for preparation of plans, drawings and specifications or for consultative services during the above mentioned period.
A critical question, of course, is Respondent's good faith in reviewing the project bids and recommending contract award to American Buildings of Pinellas, Inc., which was apparently related to American Real Estate Management Company, as evidenced by the contractor's endorsement of state checks for project progress payments to American Real Estate Management Company. The evidence established that Respondent's reasons for recommending rejection of the low bid were valid and justified because of that bidder's exceptions to the invitation for bids. Respondent denied any knowledge concerning the relationship between American Buildings of Pinellas, Inc. and American Real Estate Management Company, and no evidence was presented to the contrary. Accordingly, it was not proved that Respondent, either individually or as part of a conspiracy, wrongfully influenced the Board of Education with respect to its award of the contract to American Builders of Pinellas, Inc. The same considerations apply in determining if Respondent was guilty of any impropriety or conflict of interest by providing inspection services to the State as to subsequent construction of the units by American Builders of Pinellas, Inc. It is standard procedure for an architect who prepares plans for a State project to supervise later construction. This dual function is normally encompassed in a written standard form Architect's Contract which was not utilized in this case and for which the Commissioner of Education was questioned by the department Comptroller.
In sum, although it is evident that Respondent was aware of the fact that his drawings were beings paid for by Mr. Bussey's firm, American Real Estate Management Company, and that he did not see fit affirmatively to disclose this fact to the State School Architect when discussing the plans with him, nothing sinister can be derived from this fact alone. Certainly, the State was the beneficiary of Respondent's architectural services in this respect free of charge and, if there was chicanery on the part of any state officials and Bussey, no evidence was presented that Respondent was involved. Monies which he received from the State were turned over to his firm and there was no indication that he received any of these funds personally, in addition to his weekly salary. Accordingly, it is concluded that Petitioner has failed to establish Respondent's participation in a fraudulent scheme, as alleged.
In view of the foregoing, it is considered unnecessary to determine if the restrictive definition of "dishonest practice" set forth in 21B-9.03 and its predecessor 40-6.03 which delineate such an offense as the "rendering by an architect of services of a type below the standard required under these rules" would limit the board to that criterion in order to establish an offense. Certainly, there was no allegation or showing that Respondent's professional performance was less than the normal standards established by the State Board of Architecture. Although it is clear that the entire procedure utilized in obtaining architectural services on the project in question was highly unusual and irregular, and perhaps should have been questioned by Respondent, testimony of Mr. Betts was that the Department of Education seldom, if ever, was involved in construction projects. Such functions normally were performed under county supervision. In any event, Respondent cannot be held accountable for the failures or derelictions of that Department.
That the charge against Respondent Walter H. Melody, be dismissed.
DONE and ENTERED this 1st day of October, 1976, in Tallahassee, Florida.
THOMAS C. OLDHAM
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Selig I. Goldin, Esquire
P.O. Box 1251
Gainesville, Florida 32602
William A. Patterson, Esquire Legal Building, Suite 208
447 3rd Avenue North
St. Petersburg, Florida 33701
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DIVISION OF PROFESSIONS
DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATIONS FLORIDA STATE BOARD OF ARCHITECTURE
IN RE: WALTER H. MELODY, ) CASE NO. 76-249
)
FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER
This cause came on to be heard before the Florida State Board of Architecture on 29 October 1976 and each of the five (5) members of the Board having read the Transcript of the Administrative Hearing, read all of the Exhibits and the Recommended Order of the Hearing Officer prior to the Hearing before this Board. The architect, WALTER H. MELODY, appeared through his attorney, William A. Patterson, Esquire. After discussion by the Board members and statements by Wayne F. Betts and counsel for the respective parties, it is thereupon concluded and ordered as follows:
FINDINGS OF FACT
The Board adopts and incorporates herein the Findings of Fact contained in the Recommended Order of the Hearing Officer dated 1 October 1976, a copy of which is attached hereto.
CONCLUSIONS OF LAW
The Board adopts and incorporates herein paragraphs 1 through 6 of the Conclusions of Law contained in the Recommended Order of the Hearing Officer dated 1 October 1976.
The aforesaid conduct of WALTER H. MELODY was a "dishonest practice" as contemplated by the laws of Florida and accordingly said WALTER H. MELODY is guilty as charged in Count I of the administrative Complaint.
ORDER
Having concluded that WALTER H. MELODY is guilty as charged in Count I of the Administrative Complaint the Board then agreed to continue this cause to allow Mr. Melody an opportunity to present evidence in mitigation of penalty. The said WALTER H. MELODY then agreed to accept the following penalty and waive any right of appeal or appellate procedure and after hearing recommendations by Wayne F. Betts, Selig I. Goldin (attorney for the Board) and William A. Patterson, it is thereupon,
ORDERED that:
The Certificate of Registration Number 2176 of WALTER H. MELODY as an architect be and it is hereby suspended for the full period of ninety (90) days from 1 November 1976 and WALTER H. MELODY shall not engage in the practice of Architecture during this period of suspension.
The costs of this proceeding shall be paid by the said WALTER H. MELODY prior to his reinstatement as an architect. The amount of these costs shall be furnished to Mr. Melody as soon as possible.
Upon payment of these costs the Certificate of Registration of WALTER
H. MELODY as an architect shall be automatically reinstated as of 30 January 1977.
Dated as of 29 October 1976.
FLORIDA STATE BOARD OF ARCHITECTURE
By Hoxin, President
COPIES FURNISHED:
Selig I. Goldin, Attorney for The Florida State Board of Architecture
William A. Patterson, Attorney for Walter H. Melody
| Issue Date | Proceedings |
|---|---|
| Nov. 08, 1976 | Final Order filed. |
| Oct. 01, 1976 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 29, 1976 | Agency Final Order | |
| Oct. 01, 1976 | Recommended Order | Respondent should not be punished for dishonest practices. |
