STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ARCHITECTURE, )
)
Petitioner, )
)
vs. ) CASE NO. 83-3439
)
DAVID R. OLDHAM, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held in this cause before
P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on March 23, 1984, in Fort Myers, Florida. The appearances were as follows:
APPEARANCES
For Petitioner: Wings Slocum Benton, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: David R. Oldham, pro se
3532 Southeast 16th Place Cape Coral, Florida 33904
This matter arose on a two-count administrative complaint filed by Petitioner, seeking to suspend, revoke or take other disciplinary action against the Respondent's licensure status as a licensed architect in the State of Florida. Prior to the formal hearing, the Petitioner was granted leave to file an amended administrative complaint, adding a third count.
Count I of the complaint alleges that the Respondent violated Section 481.225(1)(i), Florida Statutes (1979), substantially reenacted in 1983, by the Respondent's alleged failure to exercise due care to conform to acceptable standards of architectural practice in preparing plans for an addition and alteration to the Bill Buck Chevrolet Dealership buildings, and thus was negligent.
In Count II, it is alleged that Respondent violated Section 481.225(1)(e), Florida Statutes (1979) (reenacted in 1983), by violating a provision of Section 481.221, Florida Statutes, to wit: Section 481.221(1)(5), Florida statutes (1979) (reenacted in 1953), in that the plans which Respondent drafted for the additional construction at the Bill Buck Chevrolet Dealership were not of a sufficiently high standard to assure the contractor/user of a clear understanding of the requirements intended to be illustrated or described by the plans. It is also charged that the plans did not clearly and accurately depict
the design of the various structural elements of the building to be constructed, nor other essential parts of the work to which they refer.
In Count III it is charged that the Respondent is subject to an automatic suspension of his license by his alleged violation of a term of a stipulation entered into in a previous disciplinary matter, which stipulation was incorporated in a Final Order. That stipulation and Final Order authorized automatic suspension of the Respondent's license in the event of a violation of a term of the stipulation, in this instance, the failure to pay certain monies due and owing to a Mr. and Mrs. Chait, alleged "victims" of his prior conduct which was the subject of that previous disciplinary action.
At the outset of the hearing, argument was heard on Petitioner's Motion to Find Matters Admitted. The Respondent had not responded to Petitioner's request for admissions, but the motion was denied in part because the response date, upon which the Respondent's answers were required to have been filed, March 19, 1984, was so close to the hearing that the Respondent considered that he could answer the request at the hearing (the Respondent being unrepresented by counsel). The answers to the request for admissions being due so close to the actual hearing date, it was not shown that the failure to receive those answers, or alternatively, the failure to have those matters in the request for admissions deemed admitted unduly prejudiced the Respondent's preparation of its case, since the due date for answers to the request for admissions was so close to the hearing that the Petitioner had, in essence, already completed its preparation for trial. In view of the lack of showing of substantial prejudice to the Petitioner by failing to have the matters deemed admitted and in an effort to afford Respondent fundamental fairness in protecting his right to practice his livelihood, the Motion to Find Matters Deemed Admitted was denied.
At the hearing, the Petitioner called seven witnesses, including the Respondent, who testified as an adverse witness after having already agreed to waive the Fifth Amendment privilege, and informing the Hearing Officer that he wished to testify in his own case, which he did as the sole defense witness.
Twenty-seven exhibits were offered by the Petitioner and were received into evidence. The Respondent offered no exhibits.
At the conclusion of the hearing, the parties waived the requirement that the Recommended Order be filed within 30 days after the filing date of the transcript of the proceedings, and availed themselves of the right to file proposed findings of fact and conclusions of law, requesting and agreeing upon
30 days after the filing date of the transcript as the due date for such pleadings. The Petitioner filed its proposed findings of fact and conclusions of law in a timely fashion.
The proposed findings of fact and conclusions of law have been considered.
To the extent that the proposed findings of fact and conclusions are in accordance with the findings, conclusions and views stated herein, they are accepted. To the extent that the proposed findings, conclusions and arguments asserted are inconsistent herewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or necessary to a determination of the material issues presented. To the extent that testimony of various witnesses does not accord with the findings herein, it is not credited. See Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3rd DCA 1982); Sierra Club v. Orlando Utilities Commission, 436
So.2d 383 (Fla. 5th DCA 1983).
The issue presented for resolution concerns whether the Respondent, Mr.
Oldham, committed the negligent acts charged with regard to the preparation of plans for the addition to the Bill Buck Chevrolet Dealership, and whether he failed to honor the stipulation incorporated in the earlier Final Order of the Board of Architecture in the earlier prosecution against the Respondent, and if he committed these charged examples of misconduct, what, if any penalty is warranted.
FINDINGS OF FACT
The Respondent, David R. Oldham, is a registered architect in the State of Florida, holding license no. 5786. The original date of his registration is August 31, 1972. The Respondent's license is presently in a probationary status. He is a self-employed architect.
The Petitioner is an agency of the State of Florida charged with regulating the practice and the practice standards of architecture and architects in Florida, pursuant to Section 20.30, Florida Statutes, and Chapters
455 and 481, Florida Statutes.
COUNTS I & II
Pursuant to a written contract entered into July 10, 1980, and signed on July 14, 1980, the Respondent agreed to provide architectural services to one "William D. Buck or "Bill Buck" for additions and alterations to his automobile dealership known as Bill Buck Chevrolet, Inc., located at 2324 South Tamiami Trail, Venice, Florida. The contract provided for the preparation of various plans and construction documents preparatory to construction of a new service building of approximately 5,000 square feet area, with additions and alterations to the existing office area of approximately 800 square feet, and the relocation of an existing inspection facility to provide for two entrance and exit lanes to automotive service-bays. The contract called for two service stalls to be depicted in each of four service-bays in the new building for a total of eight service stalls. A roof was to span across the driveway connecting the existing structure with the new service building to be constructed pursuant to the plans. The contract required Respondent to prepare a site plan, floor plans, elevations and necessary sections, details and schedules in order to permit the owner, Bill Buck, to invite bids and construct the project. The Respondent undertook to provide a set of plans from which he and his contractor could build the entire project.
The Respondent prepared the plans for Mr. Buck and they were given to contractor David Malcolmson. Mr. Malcolmson suggested that the building be changed from a metal building to a concrete block structure because it could be built cheaper and faster. Mr. Buck agreed to that change and the Respondent made changes to his drawings to indicate that the type of construction had shifted from metal to masonry. The new building was ultimately constructed as a single story structure consisting of a poured concrete monolithic floor slab- footing, with filled masonry concrete block walls and a prestressed concrete slab roof.
The Respondent prepared and issued a nine sheet set of plans, dated December 22, 1980, for the additions and alterations to the Chevrolet dealership. All nine sheets in this set of plans were signed and sealed by Respondent and ultimately filed with the Sarasota County Building Department. These plans are known hereinafter as the "permit set." On December 23, 1980, the contractor applied for a building permit, and on January 12, 1981, the
building department issued the permit authorizing construction in accordance with the permit set of plans, signed, sealed and prepared by Respondent. The permit set of plans contained the entire specifications for the project, and the entire specifications filed with that building department.
During construction, Mr. Buck himself, became concerned about the integrity of the foundation of the building. He questioned his contractor, Mr. Malcolmson, about the strength of the foundation since he knew that the type of construction had changed from metal to the prestressed concrete and concrete block structure having a substantially greater weight. At or near the completion of the construction, various cracks were observed in the walls and floors which caused a great deal of concern to Mr. Buck. He requested an inspection from the building department, and the building inspector became concerned upon seeing the cracks and asked the contractor to have an expert investigate and determine whether a serious structural problem existed. Thus, prior to issuance of a certificate of occupancy by the building department, the contractor hired Ardaman and Associates, Inc. (Ardaman), a firm of consulting engineers, to test the foundation.
On June 1, 1981, Ardaman inspected the wall and foundation system of the new building and issued a report to the contractor in the form of a letter. (See Petitioner's Exhibit 16) Ardaman had discovered a crack in the floor slab running parallel to the north wall about three feet away from that wall extending the entire length of the building. The crack was found by Ardaman to be a "stress-relief" crack caused by settlement of the monolithic foundation. The foundation was loaded and tension stress was transmitted to the top of the slab causing a tension failure (crack) in the concrete slab. Ardaman's test revealed that the soil under the wall and foundation had a bearing capacity of 3,000 pounds per square foot. The plans themselves had envisioned a 2,000 pound per square foot allowable soilbearing load. Indeed, the soil pressure compression was ultimately 5,285 pounds per square foot actual load from the weight of the building. Ardaman additionally noted two vertical cracks in that wall attributed to temperature changes. Ardaman thus recommended packing concrete under the existing foundation to prevent undermining or eroding of the soil under the foundation, since the foundation was actually above grade. The existing foundation supporting the north wall was only a half-inch from the adjacent property line, and was above the adjacent grade by 3 to 12 inches.
This is a potentially serious condition since it allows erosion of the soil under the foundation and undermining and a resulting collapse of the wall could occur. The building official from the county recommended that the contractor excavate and then backfill the excavation under the foundation with concrete to bring the lower edge of the footing down below grade level to take care of possible erosion problems. Erosion could remove some of the bearing soil from under the foundation. With that recommendation, on July 14, 1981, the building department issued a certificate of occupancy.
On August 26, 1981, at the request of the building contractor, Ardaman made an additional inspection of the facility. On August 27, Ardaman informed the contractor and the building department that no new conditions were observed at the site, but described for the first time the rotation of the footing which could cause concomitant rotation of the wall (leaning). Ardaman measured the movement of the foundation system and found that the footing had rotated or tilted approximately three-fourths of an inch to one inch at the point of the wall's contact with the footing. This could cause rotation of the wall which would decrease the bearing area of the prestressed roof slabs or beams bearing and supported by the top of the wall.
On November 4, 1981, the building department notified the contractor of its concern that the problem with the service building had not yet been resolved. The building department was concerned that because of footing or wall rotation, a loss of roof slab bearing area might have occurred and that necessary correction should be made. Because these corrections had not yet been made, the building department recommended that occupancy be discontinued until corrections could be made to the structure. On December 15, Ardaman urged the contractor to complete the following items of remedial work:
To underpin portions of the foundation, originally constructed below grade, to increase the safety factor and to comply
with the Southern Standard Building Code minimum cover requirement;
To retain a professional engineer to design an auxiliary bearing system that would prohibit significant wall rotation, as the wall had already rotated .085 inches in 8.0 feet; and
To fill floor cracks and wall cracks.
Ardaman's recommendations and findings of deficiencies regarding the structure were put in a letter filed with the building department and entered into evidence as Petitioner's Exhibit 19, corroborated by testimony of the building official, Mr. Light. It was thus established that the design of the addition to Bill Buck Chevrolet, Inc., did not comply with appropriate building code requirements related to foundation and upgrade.
On approximately February 4, 1982, the attorney for Bill Buck retained Mr. William Snell, P.E., a consulting engineer. Mr. Snell was retained to review the project to determine if serious problems existed in the design or construction. Vertical cracks were observed in the north wall on both the inside and outside surfaces. Several feet inside the building a long crack parallel to the north wall had developed in the four-inch concrete floor slab. By this time, Ardaman's recommendation to pack concrete under the north footing to prevent erosion, had already been performed. The building department still had reservations about the integrity of the building. Recent measurements for instance had revealed that the north wall was leaning three-eighths of an inch north at the ceiling line.
Mr. Snell reviewed a blueprint copy of Respondent's permit set of plans. This permit set of plans contains nine sheets (eight architectural and structural sheets and one electrical sheet). They contained no topographic survey and no building elevations are depicted. Mr. Snell's written opinions regarding the project are contained in his letter of February 15, 1982, in evidence as Petitioner's Exhibit 20 and his letter of February 17, 1982, to the building official, in evidence as Petitioner's Exhibit 21. Additionally, Mr. Snell was accepted and testified as an expert witness in structural engineering at the hearing.
Mr. Snell described the project as consisting of the new service building which abuts the adjacent common property line on the west side of the property on which the building was built. The west wall of the service building is one-half inch from that property line. The building contains a series of service-bays containing a total of eight maintenance stalls next to that common property line. The building also has waiting rooms and office space. Between the original existing Bill Buck Chevrolet building and the new service building
addition is a drive-through structure for cars which consists of a paved drive covered by a roof made of prestressed concrete "double-t's".
One of the problems extant on the face of the plans is that they contain a number of details left over from the original steel building design before it was decided to change to a masonry structure. Changing from the steel to masonry construction added considerable weight to the structure because a precast concrete roof deck is considerably heavier than a metal building roof deck as are masonry walls compared to sheet steel walls and steel columns, etc. The change from steel to masonry as the construction mode is significant in at least two ways:
First, the change created confusion in understanding tie plans. Some steel details in the plans have been voided yet others are still on the plans creating an apparent inconsistency. For instance, Sheet 2 shows steel columns and overhead framing lines, "H sections" and pipe columns, all steel components used for metal building construction. Sheet 8 still shows some walls as "non- block." Other sheets, however, such as Sheets 4 and 5, indicate only masonry for the walls. Sheet 8 indicates some steel details explicitly voided, yet others, as on Sheet 2, are only partially erased so that "ghost images" or vestiges of the "steel plan" remain. Further confusion is shown by the inconsistency between the "ghost images" on Sheets 2 and 8 which show the "H" columns and pipe columns on Sheet 2 reversed on Sheet 8. The Respondent obviously was not conscious of the impact of the change from the steel to masonry mode throughout the set of drawings.
Secondly, the change from steel to masonry is significant because the additional weight was not adequately provided for structurally. Some of the structural supports for a steel building were erased, yet the remaining thickened edge floor slab was not redesigned to provide an adequate foundation for masonry. In essence, the foundation is inadequate with the great weight of the masonry construction placed on top of it. In reality, the mere thickened edge on the floor slab does not constitute an adequate footing or foundation, based on Mr. Snell's analysis of the downward loads on the foundation. The footings were eccentrically loaded by being on the edge of the foundation instead of centered. The forces exceed both the 2,000 pounds per square foot allowable soil bearing pressure that is depicted on Sheet 8 of the plans, and the 3,000 pounds per square foot that the Ardaman firm reports as acceptable soil pressure. The soil pressure compression found by Mr. Snell was 5,285 pounds per square foot. Thus, the footings were shown to be considerably overloaded, causing the thin four-inch floor slab to crack, and then to rotate, carrying the wall in rotation with it when soil eroded out from underneath it due to the footing being installed originally above grade level. The building was dangerously overstressed as designed, and should have been dismantled or strengthened by placing new footings and piers under supporting steel beams to take the roof load off the overloaded, common property line wall.
Additionally, the plans depicted no "book" specifications and made no note of the proper concrete strength to be used nor the degree of compaction of soil required. They depicted no design loads for the roof, floor, nor for wind. No roof framing plans were provided and the Respondent did not adequately depict the roof span over the driveway and failed to exercise due care in drafting the roof span. The Respondent never developed a "so-called Section E-E" referred to on Sheet 3 of the plans. Nowhere in the plans were any support beams over the service stall doors shown and no reinforcement for this area was depicted. No reinforcement was specified for the concrete block wall piers between the service stall doors of the building. The east wall of the structure with its
series of wall piers between the service-bay doors is actually more severely loaded than the west side of the building where the cracking occurred. The cracking occurred on the west side, however, because erosion of soil from under the foundation aggravated the problem of excessive load on the foundation. The load on the east wall of the structure, however, is 29,000 pounds per square foot for the wall piers, which also are merely sitting on the thickened slab, as is the west wall.
Additionally, the Respondent failed to require a topographic survey and failed to make a grading and drainage plan for the site. The property is characterized by a downward gradient towards the west wall, and therefore, if there had been a topographic survey, the Respondent could have designed a "stepped-down" foundation to keep the foundations below grade. The Respondent, however, failed to do this, which resulted in the foundation for the west wall being above grade with the resulting erosion problems.
Additionally, no crack control or expansion joints were provided for in the plans for the wall where Ardaman Engineering found the temperature cracks.
After examining the plans and the building, Mr. Snell concluded that the plans were seriously deficient and that the building, as evidenced by cracking and exceptional deflection of structural members, was in a failing condition, with a total collapse being conceivable. Mr. Snell filed a complaint with the Petitioner and informed the building department on February 23, 1982. On that date, on the basis of Mr. Snell's report, the building officials suspended the certificate of occupancy. On that date the building official requested that the Respondent submit complete structural calculations, to which the Respondent never replied. After the certificate of occupancy was suspended, Mr. Snell prepared drawings for structural repairs and another contractor was retained to obtain a repair permit for the building. Thus the project was ultimately structurally corrected, and on June 14, 1982, the building department reinstated the certificate of occupancy.
The Respondent never asked for any site information, topographical or otherwise from the owner, Mr. Buck, and the contractor, Mr. Malcolmson, had to establish the floor elevation for the new building. The Respondent contends that he issued the permit drawings without the topographical and grade information because Mr. Buck indicated that an engineer would separately furnish all required site information. The fact remains, however, that the Respondent allowed the drawings to be issued from his office without the grade and topographical information, thus signing, sealing and submitting an incomplete set of plans to his client.
Mr. David Titsch is a registered architect and was accepted as an expert witness in the field of architecture on behalf of Petitioner. He established that it is customary for an architect to require an owner to have a topographic survey performed. The architect's responsibility is to see that the survey is performed so that he may use that information to design the project and adequately prepare drawings. If an architect requests his client to provide such information and the client or owner fails to do so, the architect should proceed no further. It is a departure from reasonable and prudent architectural practice to allow drawings to be signed, sealed and issued as final plans from an architect's office which do not depict grade information. It is particularly important to show grade information for adjacent property when proposing an addition to a structure that will abut on a property line, as in the instant situation.
In addition to the failure to depict site grade, the Respondent failed to illustrate floor elevations, simply drawing a floor slab at an undetermined elevation which put the burden on the contractor to estimate where to put the floor of the building. Serious loading problems on the footing along the west property line were demonstrated based upon Mr. Titsch's calculations, as well. It is a design error to put a ten-inch deep "floating slab" foundation along a property line. This type design is insufficient because it creates a hazard along the property line where there could be erosion of the supporting soil and where the architect, contractor and the owner cannot control what use the adjacent property owner might make of his property, which could have the effect of undermining the slab-type foundation. In fact, the slab was constructed above grade and the monolithic slab footing became exposed when a washout occurred on the adjacent property.
Additionally, the span over the driveway was excessive and structural support for the roof slab (24-inch "double T" prestressed concrete members) was inadequate. The foundation and vertical structural support was simply not designed to carry that load, and the span of the roof over the driveway area was bordering on failure. No beams were depicted supporting the wall and roof sections over the garage door openings. Thus, the contractor was left to guess, once again, as to how to support the building above these openings. In light of these deficiencies, Mr. Titsch opined that the plans depart from acceptable principles of professional architectural practice and could not result in a sound, safe building.
Mr. Robert Dykes, AIA, testified as an architectural expert for Petitioner. Mr. Dykes reviewed the permit set of plans and testified concerning his expert opinion regarding the deficiencies appearing on the face of the plans. Thus, it was established, as to Sheet 1, the site plan, that the floor paving and site heights are not indicated, the water, sewer, electric and phone services are not shown, and the drainage for storm water is not indicated. The present and proposed buildings are poorly dimensioned. On Sheet 2 the thickness of walls and vertical reinforcing are not shown. The east-west dimensions do not correctly "add up." On the floor plan depicted on Sheet 3, the vertical structural steel is not shown in the garage stall areas. On Sheet 4, the foundation, a small rectangle is depicted, assumed to be the location of vertical reinforcing steel, but it is not shown in other floor plan depictions, rendering the various sheets inconsistent. Footing requirements for the front wall of the stalls are not depicted. On Sheet 5, the front elevations and southwest elevations of the main office area are not clear as to the span condition at the driveway between both buildings (roof span), nor is the vertical height of the front elevation and exterior building material illustrated. On Sheet 6 the type of concrete block to be used is not clearly indicated, and once again, solid rectangular squares are shown on this sheet to possibly indicate vertical reinforcing, but the exact meaning of these depicted squares was not described and they are not consistent with the foundation plan. Structural reinforcing requirements between and over the overhead doors are not indicated.
On Sheet 7 the wall sections are not clear as to the sizes of the concrete beams, the reinforcing requirements and the "double-T" members and flat slab details. The wall sections are further shown to be inadequately drawn because they do not depict connection details between the flat slab and the steel or concrete beams. As to Sheet 8, no requirements for vertical reinforcement are shown and the original plans drawn for a metal building
application have not been sufficiently modified to depict an adequate, safely- supported, precast concrete roof system.
Finally, Sheet 9 regarding the electrical plan, does not provide any concrete information regarding the type of light fixtures, wattage, electrical circuits, air conditioning voltage or panel board locations. Mr. Dykes opined that the building failed structurally and was unsafe as designed and built.
COUNT III
On July 26, 1982, the Respondent signed a stipulation in DOAH Case No. 83-809, agreeing to pay a sum of money to former clients, Herman Chait and Ann
R. Chait. The sum of $1,500, plus $26.55 costs, represents a judgment entered against the Respondent in favor of the Chaits by the County Court in and for Sarasota County. Pursuant to the terms of the stipulation, the Respondent was to pay that amount in equal monthly installments over a period of 15 months, during which time the Respondent would be placed on probation by the Board of Architecture until the amount was paid in full. On September 28, 1982, the Board of Architecture entered a Final Order, incorporating in its entirety the stipulation signed by the Respondent. The final payment of the amount referred was due on December 28, 1982. On February 22, 1984, an order finding probable cause was entered by the Secretary of the Department of Professional Regulation for the Respondent's violation of the stipulation. At the instant proceeding the Respondent admitted that he had signed the stipulation, that he had not paid the amount, and that the time limit for payment had expired. The Respondent also admitted receiving two letters from Petitioner's counsel as well as a telephone call reminding him of his obligation to pay the Chaits and the possibility of automatic suspension of his license for failure to pay. His sole defense is that his personal and financial circumstances did not permit him to meet that obligation, although he acknowledges that it is due and he intends to eventually pay it.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
COUNTS I & II
Counts I and II of the amended administrative complaint are related allegations against the Respondent regarding his performance of architectural services on the Bill Buck Chevrolet project. Count I alleges that the Respondent violated Section 481.225(1)(i), Florida Statutes (1979), substantially reenacted in 1983, which authorizes the Board of Architecture to impose disciplinary measures upon a registered architect upon proof that he has been guilty of negligence in the practice of architecture. Negligence has been defined by the Board of Architecture as the failure by an architect to exercise due care to conform to acceptable standards of architectural practice in such a manner as to be detrimental to a client or to the public at large. See Section 21B-12.01(4), Florida Administrative Code. The Respondent is thus charged in Count I with a violation of the above provisions by his failure to obtain site information prior to preparing the plans at issue and by his preparation of the plans, his signing, sealing and issuing of them in a deficient and incomplete manner.
The Respondent is charged in Count II with violating Section 481.225(1)(e), Florida Statutes (1979), substantially reenacted in 1983, which authorizes disciplinary action for violation of any provision of Section 481.221, Florida Statutes, to wit: (for purposes of this count) Section 481.221(5), Florida Statutes (1979), substantially reenacted in 1983, which provides:
plans, drawings, 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 user thereof against misunderstanding of the requirements intended 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 ele- ments and of all other essential parts of the work to which they refer.
There is no question, given the expert testimony of engineer Smell, and the two architects, Mr. Dykes and Mr. Titsch, that the Respondent's design of the building and preparation of the plans depicting that design, as well as his failure to elicit grade and topographical information before preparing those plans, clearly departed from the standards contained in the above-cited statutes and rule. The conclusions of these expert witnesses that the Respondent was indeed negligent, as envisioned by the above-cited authority, was not refuted at all by the Respondent, who indeed admitted a substantial number of the deficiencies the expert witnesses found with regard to the permit set of plans. Thus, the conclusion is inescapable that as to Count I, the Respondent has indeed violated Section 481.225(1)(i), Florida Statutes, and has been guilty of negligence in the practice of architecture.
The unrefuted evidence of record shows clearly that there was confusion on the part of the contractor, Mr. Malcolmson, as to what the Respondent intended him to use as reinforcement and as certain structural members in the construction of the building. Mr. Malcolmson, for instance, had to guess as to what type of reinforcement was required to be used in the concrete block wall piers and had to use his own judgment and experience in selecting the right type of reinforcement which, as Mr. Snell established, luckily turned out to be an adequate measure from a structural integrity standpoint. The Respondent architect simply left that detail out of the plans as one of many omitted essential elements. So too, was Mr. Snell, the engineer hired by the owner to review the plans and design necessary repairs, confused by the lack of detail in the plans, as well as inconsistencies related to the original steel versus the alternative concrete block construction. The change from steel to masonry as the mode of construction was one of the primary causes of confusion in interpreting the plans by the two users of them. Aside from these "users" difficulty in understanding the plans, from the standpoint of inconsistencies, the documents did not comply with that portion of the above- cited statute requiring them to "clearly and accurately indicate the design of the structural elements and of all other essential parts of the work to which they refer." This last standard has been held to apply not only to the direct users of the plans, but to the public as well. See Department of Professional Regulation v. Juhn, DOAH Case No. 81-2109 (April 29, 1982). In addition to the confusion and misunderstanding caused by the inadequate and incomplete state of the permit set of plans, the evidence reveals that the Southern Standard
Building Code requirements as to the foundation, grade depictions and allowances and "minimum cover" were not complied with. These numerous deficiencies in the plans, established by engineer Snell and both expert architectural witnesses clearly reveal that the Respondent was negligent.
In order for an administrative agency to impose sanctions against the valuable right of such a Respondent to practice his or her livelihood, the violations charged against such a licensee must be proven by clear and convincing evidence. See Gans v. Department of Professional and Occupational Regulation, 397 So.2d 107 (Fla. 3rd DCA 1980); Walker v. Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1979); and Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966). There is no question, given the uncontradicted testimony of these expert witnesses, together with the Respondent's own admissions, that that burden has clearly been met.
COUNT III
Count III of the amended complaint concerns the Respondent's violation of the stipulation and Final Order of the Board of Architecture concerning his failure to pay the sum of money owed to former clients, the Chaits, pursuant to the stipulation underlying that Final Order. The Respondent admits his failure to pay over the funds to the Chaits in compliance with that stipulation and that Final Order of the Board, merely pleading that his straitened financial circumstances will not allow total payment at this time. He acknowledges and continues to be willing to pay when he is able. It is thus obvious that the Respondent has violated Section 481.225(1)(o) which allows the various disciplinary sanctions provided for in subsection (3) of that section to be imposed for failure to perform a statutory or legal obligation placed upon him as a registered architect, which he has clearly failed to do in this case.
Thus, Count III has been proven as well.
This is not the Respondent's first bout with the Petitioner's disciplinary process. His licensure status before this proceeding was probationary as a result of the civil and administrative litigation involving the Chaits. That substantial penal sanction apparently did not render him sufficiently cautious in his practice to avoid the numerous mistakes proven in this proceeding. Accordingly, a substantial penalty is warranted at this juncture.
RECOMMENDATION
Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore
RECOMMENDED
That the Board of Architecture suspend the license of Respondent David R. Oldham, as a registered architect in the State of Florida for two years.
DONE and ORDERED this 27th day of July 1984 in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 27th day of July 1984.
COPIES FURNISHED:
Wings Slocum Benton, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
David R. Oldham
3532 Southeast 16th Place Cape Coral, Florida 33904
Herbert Coons, Jr., Executive Director Board of Architecture
130 North Monroe Street Tallahassee, Florida 32301
Fred M. Roche, Secretary
Department of professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF ARCHITECTURE,
Petitioner,
vs. CASE NOS. 0025058
0006231
DAVID R. OLDMAN, DOAH NO 83-3439
Respondent.
/
FINAL ORDER
THIS CAUSE came on to be heard by the Florida Board of Architecture at a regularly scheduled meeting held in Miami, Florida, on October 4, 1984.
Appearance for Petitioner: Wings S. Benton
Staff Attorney
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Appearance for Respondent: David R. Oldham, pro se
3532 Southeast 16th Place Cape Coral, Florida 33904
After reviewing the complete record, the Florida Board of Architecture hereby accepts the Findings of Fact and Conclusions of Law set forth by the Hearing Officer, Michael Ruff, in his order dated July 27, 1984. The Florida Board of Architecture has determined that the recommended penalty of the Hearing Officer is not sufficient and after a review of the complete record finds that in light of the following, the penalty should be increased:
Respondent's total noncompliance with a stipulation previously entered into between himself and the Florida Board of Architecture after notice of said noncompliance constitutes a willful disregard of Respondent's obligation as a registered architect.
With regard to the negligence charge set forth in the Hearing Officer's recommended order, the Board, based on its expertise, determines that the neglect in the contract documents regarding foundations, lack of detail, lack of structural calculations and incorrect items set forth in the plans involve serious disregard of Respondent's duties as registered architect.
In light of the foregoing, Respondent's license to practice architecture in the State of Florida is SUSPENDED for a period of 3 (three) YEARS and placed on PROBATION for a period of 2 (two) YEARS subsequent to the end of the termination of suspension with a requirement that Respondent during the probationary period make quarterly reports as to his professional activities during his probation and appear before the Board prior to termination of the probation. Respondent is also FINED $3,000.00 (three thousand dollars) said fine to be paid $1,000.00 (one thousand dollars) per year over the period of suspension. Further, Respondent is required to satisfy his obligation to reimburse his clients under the terms of his previous stipulation with the Board within one year of the date of this order and failure to do so will result in a penalty of revocation of Respondent's license. Finally, Respondent shall surrender his seal to the appropriate departmental officials upon receipt of this Order.
DONE AND ORDERED this 25th day of October 1984, by the Florida Board of Architecture.
H. DEAN ROWE, Chairman Florida Board of Architecture
Copies furnished to:
Wings Benton, Esquire David R. Oldham
| Issue Date | Proceedings |
|---|---|
| Jul. 16, 1990 | Final Order filed. |
| Jul. 27, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 25, 1984 | Agency Final Order | |
| Jul. 27, 1984 | Recommended Order | Suspend Respondent's license for two years for not using due care and accepted standards in drafting plans which could be clearly followed by builder. |
CONSTRUCTION INDUSTRY LICENSING BOARD vs. SPENCER L. JAMES, 83-003439 (1983)
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION vs SERGIO J. ALCORTA, 83-003439 (1983)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. RAYMON E. JOHNSON, 83-003439 (1983)
BOARD OF PROFESSIONAL LAND SURVEYORS vs. CLARENCE L. KIMBALL, 83-003439 (1983)
