vs.
Respondents.
) Case No. 03-4605
In accordance with notice, this cause came on for formal proceeding and hearing on February 23, 2004, before P. Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in
Tallahassee, Florida.
For Petitioner: David K. Minacci, Esquire
Smith, Thompson, Shaw & Manausa, P.A. 2075 Centre Pointe Boulevard Tallahassee, Florida 32308-4893
For Respondents: Phelicia D. Stiell, Esquire
The issues to be resolved in this proceeding concern whether the Respondents committed the offenses alleged in the Administrative Complaint, which involve the Respondents allegedly practicing architecture or providing architectural services without being duly-registered or certified; using the title "architect" or words to that effect when not holding a valid license and Jimmy Lee Wallace presenting another's architecture license as one's own.
This cause arose when an Administrative Complaint was filed on October 31, 2003, against the Respondents, Jimmy Lee Wallace and Onyx Design, Inc., alleging in essence that the Respondents had committed the violations referenced above. The Respondents disputed those allegations and sought a formal proceeding and hearing to contest them. Ultimately, the Petitioner agency referred the matter to the Division of Administrative Hearings and the undersigned Administrative Law Judge. A formal hearing was conducted on February 23, 2004, in Tallahassee, Florida.
The cause came on for hearing as noticed at which time the Petitioner presented the testimony of four witnesses and had 15 exhibits admitted into evidence. Respondents presented the testimony of five witnesses and had five exhibits admitted into evidence. Upon conclusion of the proceeding, the parties
elected to secure a transcript thereof and requested an extended briefing schedule for submission of proposed recommended orders. The Proposed Recommended Orders were timely submitted and have been considered in the rendition of this Recommended Order.
The Petitioner is an agency of the State of Florida which regulates the practice of architecture and entry into the practice through licensure. The Petitioner agency, the Department of Business and Professional Regulation (Department) has jurisdiction over the unlicensed practice of architecture in accordance with Section 455.228(1) and 481.223(1)(a), Florida Statutes (2003).
The Respondent, Jimmy Lee Wallace, is president and sole stockholder of the Respondent Onyx Design, Inc. That business was incorporated on or about April 9, 2000. It has never employed a Florida licensed architect.
Mr. Wallace and Onyx Design, Inc., were not registered or certified to engage in a practice of architecture, as envisioned by Chapter 481, Florida Statutes. Mr. Wallace graduated from Texas State Technical College with an AA degree in drafting and design and, in 1994, obtained a four-year Bachelor of Science degree in architecture from Paul Quinn College in Dallas, Texas. Paul Quinn College was not an accredited school of architecture. Upon completion of his
degree, Mr. Wallace was employed with the architectural firm of Rosier Jones Architectural for almost two years as a draftsman. He was employed also with the architectural firm of Fleischman, Garcia Architects for almost a year as a draftsman.
Mr. Wallace returned to Tallahassee, Florida, to continue his education in architecture with hopes of becoming a Florida licensed architect. He was aware that he had to become licensed in order to enter into contracts for architectural services and to display an architectural license number.
The Respondent, Mr. Wallace, entered into an agreement with Nick Taylor on February 4, 2003. It was an agreement called "Contract for Architectural Services." The Respondent agreed with Mr. Taylor that the Respondent would provide architectural services on commercial property known as the Atlantis Bar and Grill located at 1588 Waldo Palmer Lane in Tallahassee, Florida. The Respondent drafted the agreement.
That agreement specifically states that the Respondent will "develop CAD drawings depicting client defined office building, Onyx will provide plumbing, mechanical, electrical and the design of the interior building. There will be three phases
(1) Schematic Design, (2) Design Development, (3) Construction Documents." The structure involved in this agreement and project, located at 1588 Waldo Palmer Lane in
Tallahassee, is a restaurant, which is a commercial property intended for public use.
Mr. Taylor understood that the Respondent would sign and seal the construction documents and drawings. The Respondent never told Mr. Taylor that anyone else would have to sign and seal the drawings and construction documents. Such documents require the seal of a licensed architect.
In accordance with the contractual terms, the Respondents were to receive $3,550.00 in cash and the balance of
$430.00, of the fee owed by Mr. Taylor, would be used by the Respondents as credit at the client, Mr. Taylor's restaurant.
The Respondents received $3,550.00 from Knights Entertainment, Inc., Mr. Taylor's business, for providing services under the "Contract for Architectural Services." The Respondent prepared the drawings under that contract. The drawings consisted of five sheets, with Onyx Design, Inc., appearing on the title block of each page. There were no other design professionals appearing on the pages of the drawings.
The drawings were dated February 4, 2003, and the initials "JLW" appear on each page. Those initials represent the Respondent's name, Jimmy Lee Wallace. The Respondent prepared all of the drawings except the portions that are handwritten.
The Respondent represented to Mr. Taylor that he was a licensed architect and provided Mr. Taylor with a business card which contained the name of Jimmy Lee Wallace of Onyx Designs, Inc. That business card offers architectural services for both commercial and residential construction and contains the notation "Licensed #FLAR0014186." That is the architectural license number of Roberto Lence (Lence). The Respondent did not have the permission of Mr. Lence to display his license number on the business card of the Respondent's business. Mr. Lence's name does not appear anywhere on the business card. Mr. Lence was never an employee of Onyx Design, Inc., or Jimmy Lee Wallace nor had he any type of business relationship with the company, either as a stockholder or an officer.
The Respondent never told Mr. Taylor that the license number on the business card belonged to someone else.
Mr. Taylor thought that the Respondent was a licensed architect based upon the representation on his business card.
Any person who worked in an architectural firm, as did Mr. Wallace, would know that only architects can follow their names with a license number. Mr. Lence feels the Respondent betrayed him by using his license number without his permission, especially since Mr. Lence had acted as a mentor for Mr. Wallace in the past.
The plans prepared by the Respondent under the referenced contract require the seal of a Florida licensed architect in order for a permit from the City of Tallahassee building department to be obtained. The plans submitted by the Respondent to Mr. Taylor did not contain a licensed architect seal.
Mr. Taylor did not even submit the plans for permitting, based upon advice from his contractor to the effect that the plans were incomplete. Mr. Taylor contacted
Mr. Wallace and gave him several options to correct the situation, including making a refund of fees paid, providing the computer files to have someone else complete the plans or that the Respondent complete the plans himself. The Respondent rejected all such offers.
The incomplete nature of the plans prompted Mr. Taylor to look up the Respondent's license number or purported license depicted on his business card. He thus discovered that the Respondent was not actually a licensed architect. He then filed a complaint with the Tallahassee Police Department and the Respondent was charged with grand theft. He entered a plea to a lesser charge in that proceeding.
On or about October 18, 2002, the Respondent entered into an agreement titled "Contract for Architectural Services" with Kenneth Barber. By this agreement, the Respondent was to
provide architectural services on commercial property intended for public use at 650 Brevard Street, Tallahassee, Florida. The structure located at that address is a commercial office building. The Respondent drafted the above-referenced agreement.
In the agreement, the Respondent agreed to provide drawings of the interior renovations, along with drawings of the interior prior to the renovations. In accordance with the terms of the contract, the Respondents were to receive $2,432.56 as a fee for architectural services. The Respondents were paid more than that amount for providing services under the above- referenced contract.
The agreement specifically states that the Respondent will "draw the existing structure located at 650 Brevard Street, Tallahassee, Florida, which is located in Frenchtown." The agreement then states: "Said drawings will include CADD drawings showing the new and old structure of the building."
The Respondent prepared the drawings for the above- referenced project. Onyx Design, Inc.'s, name appears on the title block of each page of those drawings and there are no other design professionals named within the title blocks on those pages. The Respondent provided the drafting for sheets one through nine of those plans. They were then sent to
Mr. Lence and he made changes to them. Mr. Lence is a Florida licensed architect, first becoming licensed in 1992.
On May 12, 2003, Mr. Lence signed and sealed the drawings as a Florida licensed architect. He signed and sealed the drawings even though he had never met with Mr. Barber, visited the jobsite or had any contractual relationship with Mr. Barber, the owner of the property.
The Respondent paid Mr. Lence $250.00 for the services he provided on the project, even though the Respondent received over $2,400.00. Mr. Lence only charged the Respondent $250.00, which is not his normal rate, because he was trying to help the Respondent in a mentor type of role.
Mr. Lence was not aware of that the Respondent had a written contract with Mr. Barber and was not involved in the negotiations. The Respondent told Mr. Lence that he was doing work for licensed contractors on "design-build" projects.
During the course of providing services under this contract, the Respondent provided Mr. Barber with a business card which contained the names of Jimmy L. Wallace of Onyx Design, Inc. That business card offers architectural services for commercial and residential projects. The business card contains "License #FLAR0014186." That is the architectural license number of Mr. Lence. Mr. Lence had not given his permission to the Respondent to display his license number on
the card given to Mr. Barber. In fact, Mr. Lence's name appears nowhere on that business card.
The Respondent never told Mr. Barber that the license number displayed on the card did not belong to him and thus, Mr. Barber thought the Respondent was a licensed architect.
Mr. Barber discovered that the Respondent was not a licensed architect after he entered into the contract with the Respondent. If he had known when he contracted with the Respondent that someone else would be required to sign and seal the plans, his decision to enter into such an agreement with the Respondent might have been different. The project was delayed because the Respondent did not provide correct drawings and
Mr. Barber requested the automated copies so that he could hire someone else. The Respondent refused to provide him the copies of the drawings unless Mr. Barber signed a release of liability. Mr. Barber was required to hire another licensed architect to correct the plans at a cost of $2,500.00.
The Respondent also rendered into an oral contract with Henry Hunter, a Tallahassee attorney. That contract called for the Respondent to provide drawings for a commercial property intended for public use, located at 2011 South Adams Street, Tallahassee, Florida. The agreement required the Respondent to provide the drawings so Mr. Hunter could get a building permit. If Mr. Hunter had known that the Respondent would have to get
another person, a licensed architect, to sign and seal the drawings, he probably would not have entered into the contract with Mr. Wallace. Mr. Hunter was led to believe that the Respondent was a licensed architect.
During the course of providing services under the above contract to Mr. Hunter, the Respondent provided Mr. Hunter with a business card which contained the name of Jimmy L. Wallace of Onyx Designs, Inc. The same facts and circumstances were depicted on that business card furnished to Mr. Hunter as were depicted and represented with regard to the Barber and Taylor transactions involving the Respondent. The Respondent never told Mr. Hunter that the license number displayed on the business card was not his license number and did not belong to him.
The Respondent prepared the drawings for the above- referenced project. The plans consisted of eight sheets and each sheet of plans contained Onyx Design, Inc., named within the title block along with a notation "Drawn by JLW" which represents the name of Jimmy Lee Wallace, the Respondent. The drawings do not contain the name of any other design professionals.
Other than handwritten notes and areas that were "bubbled in," the Respondent prepared the drawings on each sheet. Mr. Lence signed and sealed the drawings on January 9,
2003, without meeting the client in person or visiting the jobsite.
On or about February 18, 2003, the Respondent submitted an invoice to Mr. Hunter totaling $25,660.00 for architectural services provided. The invoice specifically sets forth 25 hours for a registered architect and the note states the invoice has been updated to "break-out" architectural service fees.
Mr. Hunter thought the Respondent was the "Registered Architect" referenced in the invoice because he was the only one he dealt with regarding this project. The invoice also states that 35 hours were spent by the principal on the project, who is the Respondent.
Mr. Lence did not assist with the preparation of the invoice nor did he have any knowledge that the Respondent was providing the invoice to Mr. Hunter.
The Respondent told Mr. Lence that this was a design- build project, that the Respondent was doing work for licensed contractors, and that there was not an individual client. If Mr. Lence had known that the Respondent was entering into contracts with individual clients, he would have treated the project differently.
The Respondent was paid $3,800.00 for services he provided on the Hunter project. Mr. Lence received nothing.
On or about April 4, 2003, the Respondent recorded a claim of lien for "furnished labor, services, or material consisting of architectural drawings and services" on the Hunter property in the amount of $21,860.00.
The fees being charged by the Respondent on this project are excessive. The fact of the Respondent filing the lien delayed a loan that Mr. Hunter was attempting to obtain involving his children's education. Mr. Lence was not aware that the Respondent had filed a claim of lien for the architectural drawings.
The Respondent entered into a contract with Roivernon Adams and Craig Taylor on October 17, 2002. That contract required the Respondent to provide drawings for a new barber shop. A barber shop is commercial property accessible to the public. In accordance with the terms of that contract, the Respondents were to receive $1,760.00 as a fee for architectural services.
The Respondent prepared the drawings for Mr. Adams and Mr. Taylor so they could obtain financing for the project. The Respondents received $1,300.00 for the services he provided under this agreement with Mr. Adams and Mr. Taylor.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this
proceeding in accordance with Section 120.569 and Subsection 120.57(1), Florida Statutes (2003).
Subsection 481.223(1)(a), Florida Statutes, states that a person may not knowingly "practice architecture unless the person is an architect or a registered architect."
Subsection 481.203(6), Florida Statutes, defines architecture to mean ". . . the rendering or offering to render services in connection with the design and construction of a structure or group of structures which have as their principal purpose human habitation or use, and the utilization of space within and surrounding such structures. These services include planning, providing preliminary study designs, drawings, and specifications, jobsite inspection, and administration of construction contracts."
The offering to complete design work and providing such design work, constitutes engaging in the practice of architecture as defined in Subsection 481.203(6), Florida Statutes. Such offering to complete work and the work performed by the Respondents does not fit within any of the exceptions to the requirement that a person be licensed as an architect.
§ 481.229, Fla. Stat.
In accordance with Subsection 481.223(1)(a), Florida Statutes, and Subsection 481.203(6), Florida Statutes, it is a violation to offer to provide architectural services when the
person is not the holder of a valid license to practice architecture when the offer is made.
The Petitioner has established by clear and convincing evidence that the Respondents offered to provide and actually did provide architectural services under the contract with Henry Hunter for the commercial contract located at 2011 South Adams Street, Tallahassee, Florida. He thus violated Subsection 481.223(1)(a), Florida Statutes, as alleged in Count I of the Administrative Complaint.
The Petitioner has likewise established that the Respondents offered to provide and actually did provide architectural services under the contract with Kenneth Barber for the commercial project located 650 Brevard Street, Tallahassee, Florida, thereby violating the statute referenced above as alleged in Count II of the Administrative Complaint.
It has also been established that the Respondents offered to provide and actually did provide architectural services under the contract with Nick Taylor for the commercial project located at 1588 Waldo Palmer Lane, Tallahassee, Florida. This is also a violation of the statutory subsection noted above and as alleged in Count III of the Administrative Complaint.
Subsection 481.223(1)(c), states that a person may not knowingly use the name or title "architect" or words to that
effect, when the person is not then the holder of a valid license.
The Petitioner has met his burden of proof by clear and convincing evidence, that the Respondent held himself out as an architect when he was not the holder of a valid license, thereby violating Subsection 481.223(1)(c), Florida Statutes, as alleged in Count IV of the Administrative Complaint.
Subsection 481.223(1)(d), Florida Statutes, states that a person may not knowingly present as his or her own the license of another. The Petitioner has established by clear and convincing evidence that the Respondents used the license and license number of Roberto Lence on his business card thereby violating Subsection 481.223(1)(d), Florida Statutes, as alleged in Count V of the Administrative Complaint.
The Respondent's defense that he did not knowingly commit these five offenses is misplaced. "Knowingly refers only to the state of the mind of an accused and means only the possession, actually or imported, of information concerning certain facts and does not require a specific intent to violate the law." Bartee v. State of Florida, 401 So. 2d 890 (Fla. 5th DCA 1981). The Petitioner has established that the Respondents knowingly entered into contracts for architectural services, held themselves out as an architect, and used the license number of another, knowing it was the license number of another.
Whether the Respondent knew that such conduct violated the law is irrelevant. In any event, it has been established that the Respondent has a four-year degree in architecture and has worked as a draftsman in two large architectural firms. He thus knew or should have known that the conduct found above was in violation of Florida law.
In summary, it has been established by clear and convincing evidence that the charges as to all five counts of the Administrative Complaint occurred and were committed by the Respondents. The disciplinary guidelines applicable for violations of Subsection 481.223(1)(a), Florida Statutes, are found in Subsection 455.228(1), Florida Statutes. They provide for a maximum $5,000.00 fine per count.
In consideration of the egregious conduct by the Respondents and the public harm that has resulted from these three projects, including criminal charges and proceedings; disciplinary charges against Mr. Lence's architectural license, the Respondent's mentor; and the financial harm to the parties involved, including the filing of a claim of lien, a substantial fine is appropriate for each count. The Respondent Wallace in all three projects, demonstrated little, if any, remorse once the problems were brought to his attention for them to be remedied. It has been established that the Respondents
committed the violations set forth in Counts IV and V on a repeated basis.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is
RECOMMENDED that a final order be entered imposing an administrative fine of $20,000.00 against the Respondents, Jimmy Lee Wallace and Onyx Design, Inc., payable in the manner provided by law.
DONE AND ENTERED this 7th day of July, 2004, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2004.
David K. Minacci, Esquire
Smith, Thompson, Shaw & Manausa, P.A. 2075 Centre Pointe Boulevard Tallahassee, Florida 32308-4893
Phelicia D. Stiell, Esquire The Stiell Law Firm
Juanita Chastain, Executive Director Architecture and Interior Design Department of Business and
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.
