STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF LANDSCAPE ARCHITECTURE, )

)

Petitioner, )

)

vs. )

)

MANNY F. MAESTRE, d/b/a ) TROPICARE LANDSCAPE, INC., )

)

Respondent. )

Case No. 03-3631

)

CORRECTED RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on December 3, 2003, in Sarasota, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles J. Pellegrini, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 481.325(1)(g), 481.325(1)(j), 481.325(1)(k), and 455.227(1)(a), Florida

Statutes (2001), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On January 29, 2003, Petitioner, Department of Business and Professional Regulation (Department), filed an Administrative Complaint against Respondent, Manny F. Maestre d/b/a Tropicare Landscape, Inc. (Maestre), alleging that Maestre violated Subsections 481.325(1)(g), 481.325(1)(j), 481.325(1)(k), and

455.227(1)(a), Florida Statutes (2001). Maestre requested an administrative hearing, and the case was referred to the Division of Administrative Hearings on September 30, 2003, for assignment to an Administrative Law Judge. The case was originally assigned to Administrative Law Judge William F. Quattlebaum, and was reassigned to Administrative Law Judge Susan B. Kirkland to conduct the final hearing.

A Notice of Hearing was issued on October 21, 2003, scheduling the final hearing for December 3, 2003, at 9:00 a.m. Respondent was served a copy of the Notice of Hearing by United States mail. As of the date of this Recommended Order, the copy of the notice sent to Respondent has not been returned to the Division of Administrative Hearings as undeliverable.

Respondent failed to appear at the scheduled time of commencement of the final hearing. The taking of testimony was delayed until 9:30 a.m. to give Respondent time to appear; however, Respondent did not appear, and did not advise the Division of Administrative Hearings why he did not appear.

At the final hearing, Petitioner presented the testimony of Stephen James Kidd, Jaqueline Sue Hansen, and Jeff Caster.

Petitioner's Exhibits P-1 through P-6, P-8 through P-19, P-21 through P-26, P-28 through P-39, and P-43 through P-45 were admitted in evidence. Petitioner's P-7 was offered in evidence, but was not admitted.

The one-volume Transcript was filed on January 21, 2004. Petitioner filed its Proposed Recommended Order on January 27, 2004. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. At all material times relevant to this proceeding, Maestre was licensed as a landscape architect in the State of Florida, having been issued license number LA 00001744.

2. Maestre provided landscape architectural services through Tropicare Landscape, Inc. (Tropicare). Tropicare has never possessed a certificate of authorization for the practice of landscape architecture in the State of Florida.

3. Stephen Kidd (Kidd) and his wife Jaqueline Hansen (Hansen) contacted Maestre to help them with a landscaping project in their backyard. Hansen found Maestre using the yellow pages in the telephone directory.

4. Maestre came to the Kidd/Hansen residence sometime in June 2001 to discuss the project. Hansen provided Maestre with a sketch for the design of the project, which included a deck, a

   koi pond, a stream, and a waterfall. Hansen paid Maestre $40 for the consultation, although she and Kidd understood that the initial consultation was to be free.

5. On June 15, 2001, Kidd and Hansen entered into a contract with Maestre for landscape architectural design services. The cover letter which accompanied the contract was on Tropicare letterhead.

6. The contract provided that Maestre was to "examine surrounding conditions, locate and identify all existing amenities for the purpose of producing the necessary site plan." After the owners approved the preliminary phase, Maestre was to prepare working plans, which were to include the following:

   1. Planting: Shall name quantity and size all plantings {proposed & existing}, as well as depicting all proposed site amenities (sitting areas, walkways/deck, pond . . .) for various areas of the project site.

   2. Lighting: This plan shall show the location and type of light fixture to be used as decorative landscape lighting.

      Wiring and routing of electrical circuits are not part of this plan. If practical, this information will be depicted on the captioned planting plan.

   3. Layout & Details: As required, for all proposed hard-scape items referenced above, and such elements of the design solution proposed, shall be provided as needed for construction.

      
      

7. The contract provided that Maestre may provide other services as requested by the owners such as obtaining subcontractor bids and making changes to completed working

   drawings. Maestre's role during the project installation was set forth in the contract as follows:

   Upon authorization of budgets & estimates by Owner, Tropicare Landscapes, Inc., shall implement and contract the Project, as phased by the Owner. The Landscape Architect shall oversee all work in progress. [50% of the Professional Fees disbursed by Owner as shown in Section II.b, shall be credited appropriately towards project installation.]

   
   

8. Maestre's hourly fees were to be billed at $45 per hour for the preliminary work and other services and $65 per hour for the working plans.

9. Hansen and Kidd provided Maestre with a copy of the deed restrictions for the subdivision in which the Kidd/Hansen residence was located.

10. Kidd and Hansen received a statement from Maestre dated June 26, 2001, for $287.50, which represented 3.5 hours for site analysis and conceptual plan at $45 per hour and two hours for working drawings and base sheets at $65 per hour. Hansen paid Maestre $300 based on this statement.

11. On his second meeting with Hansen, Maestre provided her with a conceptual plan, which was similar to the drawing that Hansen had originally provided to Maestre, except that Maestre had included gravel in some open areas where Hansen had wanted sod.

12. Maestre sent Kidd and Hansen a statement dated July 5, 2001, for $393.75, which represented 6.25 hours for working drawings of the layout and planting design. Hansen paid Maestre

    $400 based on this statement.

    
    

13. Kidd and Hansen provided Maestre with a copy of the survey of the property after the first site plan was completed.

14. Maestre sent a statement to Kidd and Hansen dated July 10, 2001, in which he charged them $2,391.25, representing a project implementation deposit of $2,115 and 4.25 hours for working drawings for a new layout. Hansen paid Maestre $3,000 based on this statement.

15. By letter dated July 11, 2001, Maestre advised Kidd and Hansen that the $2,115 deposit would be applied toward implementation of the project and that 50 percent of the professional fees paid for the working drawings would be credited toward project implementation.

16. By statement dated July 23, 2001, Maestre charged Kidd and Hansen $650 for the working drawing of the final plan, representing ten hours of work. Hansen paid Maestre $650 based on this statement, bringing the total amount paid to Maestre to

    $4,390.

    
    

17. By mid-August 2001, Hansen became nervous because no physical work was being done on the project. Maestre had not given her a project schedule, and she was uncomfortable with his

    work on the project. On August 20, 2001, Hansen advised Maestre by telephone that she and her husband no longer desired to continue with the project due to their financial circumstances. Kidd and Hansen were not having financial problems, but Hansen did not want to tell Maestre that they did not trust him.

18. By letter on Tropicare letterhead dated August 20, 2001, Maestre advised Kidd and Hansen that the deposit that had been made for the installation had been applied towards an oriental wooden bridge and bamboo plants. Neither the bridge nor the purchase of the bamboo had been authorized by Hansen or Kidd. The letter included a statement of the costs for the bamboo and bridge and for six hours of additional services for meeting with potential subcontractors and for blueprints. The charge for the bamboo was $2,016, and the charge for the bridge was $372.80. As of the final hearing, Kidd and Hansen have not received either the bridge or the bamboo.

19. By letter dated August 22, 2001, Hansen and Kidd advised Maestre that they were terminating the contract and wanted their money returned minus the money that had been paid for the plans.

20. The correspondence and statements from Maestre to Kidd and Hansen were either on Tropicare's letterhead or a hybrid letterhead which showed both Maestre and Tropicare. It is clear

    that Tropicare was offering landscape architectural services with Maestre as the registered landscape architect.

21. Maestre produced a layout plan dated August 2, 2001, and a plan with a plant list and construction notes (plant plan) dated June 5, 2001, with revisions on July 10 and 23, 2001. The plans were not in conformance with the deed restrictions for the subdivision in which the Kidd/Hansen residence is located. The deed restrictions required that "no structure of any kind, including but not limited to dwellings, garages, swimming pools, and screened cages, shall be erected nearer . . . than 8 feet from any side lot line, nor nearer than 15 feet from the rear lot line of any lot."

22. The planting plan last revised on July 23, 2001, shows a mansard screened enclosure with eight-foot set backs from the rear lot line and a side line. The layout plan shows a setback of less than five feet from the mansard enclosure and the rear lot line. Both plans are in violation of the deed restrictions which require a 15-foot set back from the rear lot line.

23. The waterfall structure has a five-foot set back from the rear lot line on the layout plan and an eight-foot set back on the planting plan. Both plans are violations of the deed restrictions requiring a 15-foot set back.

24. The planting plan should contain the common names and the botanical names of the plants to be used in the project.

    The planting plan prepared by Maestre did not contain both the botanical and common names of the plants. The planting plan should specify the size, spacing, quality, and quantity of the plants. Maestre's planting plan did not specify the size, spacing, quality, or quantity of the plants to be used. The inadequate plant and planting specifications would not have permitted contractors to bid appropriately in the interests of Kidd and Hansen.

25. Maestre's plans should have included specifications of location or of the type, size, and spacing of beams, joists, decking, and fasteners necessary for the construction of the deck structure. The plans prepared by Maestre did not include this information, which would be necessary to bid the deck portion of the project.

26. Plans for water features such as the waterfall for the Kidd/Hansen residence should consider spray height or water fall, free board and operating water levels, water depth, water level and wave action, pool shape, color, materials for pipes and fittings, water volume and pressure, pump sizing, pump types and filtration systems. Maestre's plans did not specify or inadequately specified the characteristics of water flow, the water depth of the pond, pool shape, weir elevations, height of the waterfall, waterfall structure and components, pumping

    requirements, characteristics of the piping, and pump specifications.

27. Maestre's plans for the deck were inadequate. The plans did not include specifications or details such as type, size, and spacing of beams, joists, decking, and fasteners for the construction of the deck structure. Additionally, the plans did not include the type of deck finish that would be applied after construction.

28. The plans were inadequate in that they did not show how the bamboo screens were to be constructed or the height of the structures. This information would have been necessary to bid the bamboo structure portion of the project.

29. Maestre met with potential subcontractors. The evidence does not clearly and convincingly show that these meetings were improper. However, Maestre did improperly charge Kidd and Hansen for the time he spent meeting with the subcontractors. Maestre charged Kidd and Hansen six hours for meeting with potential subcontractors at the rate of $65 per hour. The contract specified that the rate for such services was $45 per hour.

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2003).

31. The Department has the burden to establish by clear and convincing evidence the allegations in the Administrative Complaint. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

32. The Department has alleged that Maestre violated Subsections 481.325(1)(g), (j), and (k), Florida Statutes (2001), which provide:

    (1) The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:

    * * *

    (g) Committing an act of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of landscape architecture.

    * * *

    1. Aiding, assisting, procuring, or advising any unlicensed person to practice landscape architecture contrary to this part or to any rule of the department or board.

    2. Failing to perform any statutory or legal obligation placed upon a licensed landscape architect.

    
    

33. The Department also alleged that Maestre violated Subsection 455.227(1)(a), Florida Statutes (2001), which provides:

    1. The following acts shall constitute grounds for which disciplinary actions specified in subsection (2) may be taken:

       1. Making misleading, deceptive, or fraudulent representations in or related to the practice of the licensee's profession.

    
    

34. The Department has proved by clear and convincing evidence that Maestre was negligent in providing landscape

    architectural services to Kidd and Hansen. His negligence included failing to use appropriate set backs, failing to prepare an adequate planting plan, failure to specify the appropriate details for the waterfall, the bamboo structures, and the deck.

35. The Department has established by clear and convincing evidence that Maestre committed misconduct relating to his contract with Kidd and Hansen by purchasing the bamboo and bridge without their prior approval, by charging for his meetings with potential subcontractors in excess of the contractual hourly fee, and failing to either deliver the bamboo and bridge or to refund the money for those items which had been purchased.

36. The Department established that Maestre violated Subsection 481.325(1)(g), Florida Statutes (2001).

37. Tropicare was offering landscape architectural services and as such should have been certified pursuant to Section 481.319, Florida Statutes (2001). Based on Maestre's correspondence and statements, it is clear that he was providing landscape architectural services through Tropicare. Therefore, the Department has established that Maestre violated Subsection 481.325(1)(j), Florida Statutes (2001).

38. The Department has failed to establish that Maestre made misleading, deceptive, or fraudulent misrepresentations in violation of Subsection 455.227(1)(a), Florida Statutes (2001).

39. The Department alleges in its Proposed Recommended Order and in the Administrative Complaint that Maestre violated Subsection 481.324(1)(k), Florida Statutes (2001), by failing to get a certificate of authorization for Tropicare. The Department has failed to establish that Maestre owned Tropicare or was otherwise responsible for procuring such a certificate. Thus, the Department has failed to establish that Maestre violated Subsection 481.324(1)(k), Florida Statutes (2001).

40. Subsection 481.325(3), Florida Statutes (2001), provides for penalties for violations of Subsection 481.325(1), Florida Statutes. Florida Administrative Code Rule 61G10-14.003 sets forth the range of penalties which may be imposed. The penalty for a violation for a first offense of aiding unlicensed practice ranges from a reprimand and $1,000 fine to a one-year suspension, two years of probation with conditions, and a $1,000 fine. The penalty for a first offense of negligence in the practice of landscape architecture ranges from reprimand, two years of probation with conditions, and a $1,000 fine to revocation and a $1,000 fine.

41. The Department has requested that a Recommended Order be issued recommending that investigative and prosecution costs

of $482.75 be assessed pursuant to Subsection 455.227(3)(a), Florida Statutes (2003). The Department has provided no basis for the authority of an Administrative Law Judge to recommend the assessment of the investigative and prosecution costs. If the Administrative Law Judge did have such authority, the Department presented no evidence as to the costs requested.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered finding that Manny F. Maestre violated Subsections 481.325(1)(g) and (j), Florida Statutes (2001); finding that he did not violate Subsections 481.325(1)(k) and 455.227(1)(a), Florida Statutes; imposing an administrative fine of $1,000 for a violation of Subsection 481.325(1)(g), Florida Statutes; imposing an administrative fine of $1,000 for a violation of Subsection 481.325(1)(j), Florida Statutes; issuing a written reprimand; and imposing two years of probation with conditions as the Board of Landscape Architecture deems necessary.

DONE AND ENTERED this 26th day of February, 2004, in Tallahassee, Leon County, Florida.

S

SUSAN B. KIRKLAND

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 the Clerk of the Division of Administrative Hearings this 26th day of February, 2004.

COPIES FURNISHED:

Manny F. Maestre, Jr. Post Office Box 20816 Bradenton, Florida 34204

Charles J. Pellegrini, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Nancy Campiglia, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Sherry Landrum, Executive Director Board of Landscape Architecture Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 03-003631

Orders for Case No: 03-003631