STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF ARCHITECTURE, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1995

)

DEMETRIOS JAMES ATHAN, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard in the offices of Elizabeth Lester, 130 Palmetto Avenue, Orlando, Florida, on February 16, 1978, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was referred to the Division of Administrative Hearings by the Florida Board of Architecture to consider the petition of Demetrios James Athan for reinstatement by the Board. Prior to the hearing, Athan, in his pleadings, raised the question of whether his license had been properly revoked by the Board initially. This case was heard pursuant to the provisions of Chapter 467 and Chapter 120, Florida Statutes.

APPEARANCES

For Petitioner: James C. Rinaman, Jr., Esquire

Southeast First Bank Building Post Office Box 447 Jacksonville, Florida 32201

For Respondent: Demetrios James Athan

Post Office Box 174

Cocoa Beach, Florida 32931

At the formal hearing the Board entered into evidence the entire record of Athan's correspondence with the Board since his application for licensure in 1955. Based on that record, Counsel for the Board argued that the Board had refused Athan's request for reinstatement of his license because there were serious questions of his qualifications based upon correspondence in the file from the National Council of Architectural Registration Boards which had refused to register him. Further, the correspondence in the file showed that Athan had resigned from the American Institute of Architects (AIA) while a charge of unethical practice was pending against him concerning self-laudatory advertising. Based upon Athan's statements at two prior hearings conducted by the Board of Architecture concerning Athan's request for reinstatement, the Board also refused Athan's request for reinstatement because he had limited his practice of architecture by doing work only for his own development company from 1972 until 1974. The Board also considered Athan's statements that he had taken an eighteen month vacation immediately preceding his request for reinstatement.

At the formal hearing, Athan objected to consideration of the National Council of Architectural Board's material and material concerning his registration from the AIA because this material was not relevant to the question of his reinstatement. Athan's objection was denied since it was apparent the Board had considered these matters in denying his request for reinstatement. At the two preceding hearings, which the Board had held on this matter, Athan presented testimony explaining the origin and basis for the material contained in the NCARB and AIA papers. Athan presented evidence of the nature of his architectural practice for his own development company from 1972 until 1974.

Athan also presented a letter of recommendation concerning his qualifications based upon a short period of practice with a Florida architectural firm subsequent to his eighteen month vacation. Attacking the revocation of his license by the Board, Athan presented testimony that he had not received notice of the revocation in 1973 and that the Board had advised him as late as 1976 that upon payment of back fees and penalties he could be reinstated. Athan also stated, and the record substantiates, that he was never afforded an opportunity of a hearing on the question of his revocation.

Counsel for the Board argued that the revocation of Athan's license occurred by operation of law when the renewal fee was not paid by the end of July each year; but that pursuant to statute, upon payment of the fees within one year a registrant would be automatically reinstated. Counsel for the Board further represented that it was policy of the Board to reinstate persons who had not paid their fees after the end of the one-year grace period based upon the Board's discretionary determination.

The two issues presented at the hearing based upon the evidence were whether Athan's registration was revoked by the Board in 1973 and whether Athan's license should be reinstated.

FINDINGS OF FACT

1. Prior to July, 1972, Athan was a registered architect in the State of Florida after passing the Board's examination.

   
   

2. In 1972 Athan failed to pay his renewal fee for the year 1973. Nathan tendered his fee for 1972 in June, 1973; however, his application and check were returned to him by the Board because Athan did not include a $10.00 penalty fee. No further action was taken by the Board until June, 1976, when after an inquiry by Athan as to his status, the Board sent Athan a notice of revocation dated May 27, 1976. In response to this notice, Athan requested additional information from the Board. The Board's letters of June 9, 1976, and August 16, 1976, advised Athan that, if he desired to be reinstated without examination, he would have to appear before the Board. Athan appeared before the Board on two occasions and the Board denied his request for reinstatement. The basis for this denial was never stated formerly to Athan and is not developed in the file introduced into evidence.

   
   

3. Athan testified and the file reflects that he was never noticed of a hearing to be held on the issue of the revocation of his license and that no formal action of revocation was ever taken by the Board prior to May 27, 1976.

   
   

4. The parties stipulated that Athan meets all the qualifications for licensure required by the statutes prior to taking the examination for licensure.

5. The basis for the Board's action in denying Athan's request for reinstatement are contained in the representations and arguments of Counsel for the Board as set forth in the introductory portion of this order and are hereby incorporated into the findings of fact.

   
   

6. Based upon the stipulation concerning Athan's qualifications, the only basis for denial of Athan's application for reinstatement are those stated above.

   
   

7. Between 1972 and 1974 Athan designed structures for his own development company. During this period, he developed, designed and supervised the construction of a forty-unit apartment house and six office buildings. Considering that Athan was totally responsible for design and construction of these projects, this work compares favorably with his work output in the preceding four years during which he designed thirteen shopping centers, 3,000 apartment units, a four-story office building, two hospitals, and twelve to fifteen private homes.

   
   

8. Following his eighteen month vacation, Athan worked for a licensed architectural firm in the State of Florida for a short while during which he was involved in all phases of architecture. This firm found that Athan's work was totally satisfactory in all respects.

   
   

   CONCLUSIONS OF LAW

   
   

9. The status of the case before the Hearing Officer is not easily determined because the record is vague concerning the action taken by the Board in 1973. The Board argues that in July, 1972, the registration of Athan was revoked by authorization of law and that no notice or other action was required. The Board further argues that if notice of revocation was required, its letter of June 15, 1973, was sufficient notice of its intent to revoke. This letter was sent within the one-year period of automatic reinstatement. From this letter, it is apparent that the Board had not revoked Athan's license as of June 15, 1973. The statute would have permitted automatic reinstatement until the end of July, 1973. Between 1973 and 1976, no action was taken by the Board to revoke Athan's license.

   
   

10. Under the present provisions of Chapter 120 and its predecessor, the revocation of a license requires notice and the opportunity on the part of the licensee to be heard. Clearly this substantive and procedural right was not afforded Athan. Although the stage may have been set for revocation by Athan's failure to pay the annual renewal fee; and although the Board may have revoked solely upon presentation of evidence of nonpayment, some formal action by the Board would have been required and the individual would have been entitled to a hearing after due notice.

    
    

11. It is clear from the record that these rights were not afforded Athan, and that the June, 1973, letter does not meet the notice requirements provided by the statutes. The words "revocation" or "revoked" do not appear in the text of the June, 1973, letter.

    
    

12. Because the Board took no action to revoke in 1973, the status of Athan's license remained in limbo until 1976 when Athan requested information on his status. At that time, the Board advised Athan that his registration was "revoked." Again, the Board did not advise him of his right to a hearing on the question of the revocation of his license. Further, the Board advised him that if he wished to have his licensed reinstated, he must appear before the Board.

    In this regard, the Board failed to advise Athan that he had a right to a formal hearing pursuant to Chapter 120, on the question of his reinstatement, until Athan had appeared twice before the Board regarding his reinstatement."

    
    

13. In these hearings, the Board considered Athan's application for reinstatement and subsequently advised him that his request was denied. After much correspondence between the Board and Athan, and the grounds for their denial, he was advised that he had a right to a hearing pursuant to Chapter 120, Florida Statutes, to determine the question whether his license should be reinstated.

    
    

14. At the formal hearing before the Hearing Officer, Counsel argued that this proceeding was a de novo evidentiary hearing and that the Board's decision concerning the reinstatement of Athan's license was not on appeal. The Board's Counsel is correct that this is a de novo evidentiary hearing, but the record discloses that the Board has already illegally revoked Athan's license, and proceeded to hearing twice on the question of his reinstatement contrary to the provisions of Chapter 120. The manner in which the Board proceeded in this manner raises grave questions as to whether it has so prejudiced its position with regard to Mr. Athan's license that it can fairly consider this case upon its merits at this time.

    
    

15. Concerning the two issues raised at the hearing, the record is clear that Athan's license was not revoked in the manner required by law. Because Athan's license was never revoked, technically the Board should be required to notice Athan on the question of revocation and be required to prove the basis for revocation if Athan's controverts the material facts surrounding the Board's allegations. However, at this point this would needlessly delay the Board's determination of Athan's status when in light of the evidence presented at the instant hearing, the Board proved Athan did not renew his license for the years 1973, 1974 and 1975. Based upon the evidence presented, the Hearing Officer concludes that the Board had caused to revoke Athan's license because of his failure to pay the annual renewal fee. It is noted that had the Board acted in timely manner to revoke Athan's license as required by law, Athan would have been on notice of his status and could have sought reinstatement prior to July, 1973.

    
    

16. Considering the issue of Athan's reinstatement, the burden rests on Athan to show that he is qualified for reinstatement. The Board has stipulated that he is qualified to he licensed upon reexamination. If one looks at this case from the standpoint of what Athan would have been required to prove at a formal hearing on the question of his reinstatement, he would have met his burden of proof based upon the Board's stipulation that he is qualified to be licensed upon reexamination and the fact that Athan has already passed this examination once. At this point, the Board would have been required to produce any evidence it had concerning Athan's lack of qualifications. In this regard, the Board's case would have consisted of matters contained in the Board's file relating to the NCARB's refusal to accord Athan membership and Athan's resignation from the AIA and the AIA charges of unethical self-laudatory advertising. These materials are not admissible because they are hearsay upon which no finding of fact may be based. No substantial and competent admissible evidence was introduced by the Board concerning any derogatory information against Athan.

    
    

17. Concerning the question of the limitation of Athan's practice from 1972 and 1974, during which time he did work solely for his own development company, Athan's testimony indicates that he did a substantial amount of design

and supervisory architectural work during these years. Concerning his eighteen month vacation and absence from the practice of architecture immediately prior to his request for reinstatement, the record reflects that Athan had practiced architecture for nearly seventeen years prior to this eighteen month vacation. Subsequent to this eighteen month vacation, Athan was employed by an architectural firm within the State of Florida where he performed all phases of architectural practice. His employment with this firm was satisfactory.

Considering his many years of experience prior to his eighteen month vacation and his satisfactory performance of his duties subsequent to that vacation, the Hearing Officer concludes that Athan is fully qualified to practice architecture with the State of Florida upon reinstatement of his license without reexamination.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the license of Demetrios James Athan be reinstated by the Florida State Board of Architecture.

DONE and ORDERED this 1st day of March, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

James C. Rinaman, Jr., Esquire Southeast First Bank Building Post Office Box 447 Jacksonville, Florida 32201

Mr. Demetrios James Athan Post Office Box 174

Cocoa Beach, Florida 32931

Docket for Case No: 77-001995

Orders for Case No: 77-001995