STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1224

)

GARY E. PETERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was held on the above matter by H. E. SMITHERS at Ft. Lauderdale, Florida, on August 27, 1980. Carol Gregg represented the Petitioner and the Respondent represented himself.

This action commenced with the filing of a complaint with the Department of Professional Regulation, Board of Architecture (Petitioner or DPR) by Ms.

Anderson who alleged that Gary E. Peterson (Respondent or Peterson) failed to prepare plans for the conversion of a house to a professional building as required by their contract. The issue is whether the Respondent was incompetent or negligent in the preparation of plans and if so, what disciplinary action should be taken.

Petitioner presented the testimony of the complainant and two architects and its Exhibits P1-P5, received in evidence. Respondent testified on his own behalf and presented Exhibits R1-R4, only R4 being received in evidence.

Petitioner's proposed findings are adopted.

FINDINGS OF FACT

1. On March 9, 1973 Peterson, an architect registered in Florida, submitted a proposal "for preparation of design and construction drawings" for remodeling an existing residence to a new law office (Exhibit P-5). This was assigned on March 13, 1978 by attorney Anderson, who also remitted the required

   $200 retainer fee. Pertinent to this case, the contract provided for services to be rendered as: "Contract documents for permits and construction to include architectural plans (site floor plan, elevations and sections) and engineered structural and electrical drawings; "fee was $1,000 payable $200 on signing and

   $800 upon completed contract documents for permits." Any other services were at

   $20 per hour, including design changes after approval of preliminary drawings.

   
   

2. The plans Peterson prepared showed the removal of a load bearing wall, without comment or provision for structural additions required by the demolition of the wall. Although the plans were not sealed, Anderson paid the $800 balance and bids were requested. The one bid (Exhibit R-4) was considerably more than budgeted, therefore the project was delayed. After a time, Anderson got interested in the project again but Peterson was unavailable so another

   architect was used and the project was completed. Thereafter, Anderson's requested reimbursement from Peterson was refused and this complaint was filed.

   
   

3. Two registered Florida architects testified as experts for the Petitioner. Peterson's plans did not meet minimum architectural standards, particularly as to omission of substitute structural members for the removal of the load bearing wall. Although, structural changes could have been added by addendum, plans must be complete prior to obtaining permits and bids, and the acceptance of the full amount of the fee.

   
   

4. In mitigation, Respondent agreed that he misinterpreted Anderson's understanding and desires but thought the standard procedure was followed; he indicated that this is the first time he has been in this type of situation. More particularly, Peterson intended to exercise his right to prepare an addendum that would have provided an appropriate structural substitution for the load bearing wall, after the ceiling was opened up; he considered the original plans for the wall as schematic only. He assumed the project was not going forward and the bidding process was merely to get prices.

   
   

   CONCLUSIONS OF LAW

   
   

5. Sections 467.14(1)(a), Florida Statutes (1978) provided for the suspension or revocation of an architects certificate or registration for the negligent or incompetent practice of architecture. Section 481.225(1)(i), Florida Statutes (1979) also provides for a reprimand or fine. Negligence has been defined as the failure to use the degree of care which would be exercised by the ordinary, average architect on a similar project. Conklin v. Cohen, 287 So.2d 56 (Fla. 1973). The Legislature expanded on this principle by the enactment of 481.225(5), Florida Statutes (1973) as follows.

(5) Plans, drawing, specifications and other related documents prepared by a registered architect as part of his architectural practice shall be of a sufficiently high standard to assure the users thereof against misunderstanding of the requirements in- tended to be illustrated or described by them. To be of the required standard, such documents should clearly and accurately indicate the design of the structural elements and of all other essential parts

of the work to which they refer.

Rule 21 B-12.01, Florida Administrative Code, pertaining to negligence generally tracks the statute and defines incompetence as the physical or mental incapacity of inability . . . to practice architecture." Given these standards and the above facts, Peterson was negligent, but not incompetent, in the preparation of the plans for Ms. Anderson.

It is, therefore,

RECOMMENDED that the Certificate of Registration No. 0006821 issued to Gary

E. Peterson be suspended for a period of 3 months.

DONE and ORDERED this 7th day of October, 1980, in Tallahassee, Florida.

H. E. SMITHERS Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 1980.

COPIES FURNISHED:

Carol Gregg, Esquire

Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

Gary E. Peterson

509 N. E. 4th Avenue Ft. Lauderdale, Florida

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF ARCHITECTURE

BOARD OF ARCHITECTURE,

Petitioner,

vs. CASE NO. 80-1224

GARY E. PETERSON,

Respondent.

/

FINAL ORDER

This cause having come on to be heard before the Board of Architecture at a regularly scheduled meeting of January 23, 1981 pursuant to Section 455.225, Florida Statutes, upon Recommended Order issued by the Hearing Officer in the above styled cause, said Recommended Order being attached hereto and made a part

hereof this Final Order and the Board having reviewed the complete record and being otherwise fully advised of the premises heard, makes the following findings:

1. The findings of fact and conclusions of law made by the Hearing Officer in the Recommended Order are hereby accepted by the Board.

   
   

2. The penalty recommended by the Hearing Officer is hereby determined to be too harsh in view of the lack of severity of the offense and Respondent's previous good record of the practice of Architecture.

WHEREFORE, it is hereby Ordered and Adjudged that Respondent is found guilty of violating Section 481.225(1)(i), Florida Statutes, and Rule 21B-12.01, Florida Administrative Code.

Respondent is hereby reprimanded for such conduct with the stipulation that said reprimand shall be considered in the imposition of any further discipline imposed upon Respondent for acts of similar nature. Respondent is further placed upon probation for a period of six (6) months under the following conditions:

1. That in all his dealing with clients, Respondent enter in to contractual agreements such as those recommended by the American Institute of Architects.

   
   

2. That the Board may request a review report from Respondent describing his scope of practice and showing compliance with the above mentioned agreement.

   
   

3. For the duration of the probationary period the Respondent will report immediately by certified and registered mail, to the Department of Professional Regulation, Attention Administrator, Office of Investigative Services, any of the below mentioned events, together with Respondent's name, license number and the date of this document;

1. Any change in Respondent's residence address:

   
   

2. Any change in Respondent's practice address including the addition of new practice locations;

   
   

3. Any change in the name of any professional association to which Respondent belongs or with which Respondent practices;

   
   

4. Any civil lawsuit or criminal citation, information or indictment filed and naming Respondent as a party defendant.

DONE and ORDERED this 23rd day of January, 1981.

Mr. Robert Burke, Jr.

Chairman, Board of Architecture

cc: Carol Gregg

Gary E. Peterson John Rimes

Docket for Case No: 80-001224

Orders for Case No: 80-001224