STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

W.R. “BUDDY” BRAREN, III, Respondent.

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) Case No. 05-0552

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RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) conducted a final hearing in the above-styled matter on April 29, 2005, in Monticello, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: David K. Minacci, Esquire

Smith, Thompson, Shaw and Manausa, P.A.

2075 Centre Pointe Boulevard Tallahassee, Florida 32308-4893

For Respondent: W.R. “Buddy” Braren, III, pro se

3007 Waukeenah Highway

Monticello, Florida 32344

STATEMENT OF THE ISSUES

The primary issues for determination are whether W.R. “Buddy” Braren, III, (Respondent) engaged in the unlicensed practice of architecture contrary to the proscription contained in Section 481.223(1)(a), Florida Statutes; and secondarily, if Respondent committed such a violation, what penalty should be

imposed?

PRELIMINARY STATEMENT

On January 24, 2005, Petitioner issued an Administrative Complaint alleging that Respondent provided architectural services without being duly registered or certified to engage in the practice of architecture.

Respondent disputed the allegations in the Administrative Complaint and requested a formal administrative hearing. The case was referred to the Division of Administrative Hearings on or about February 15, 2005. A formal hearing was set for

April 29, 2005, in Monticello, Florida.

At hearing, Petitioner presented testimony of three witnesses and six exhibits. Respondent testified in his own behalf and did not submit any exhibits.

A one-volume transcript of the final hearing was filed on May 16, 2005. Petitioner and Respondent filed a Proposed Recommended Order. Those post-hearing submissions have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department of Business and Professional Regulation (Petitioner), is a state agency charged with the duty and responsibility of regulating the practice of architecture pursuant to Chapters 20, 455, and 481, Florida Statutes.

2. Respondent has not been certified or licensed as an architect pursuant to Chapter 481, Part I, Florida Statutes, and has not represented himself as such, at any time material to these proceedings.

3. Respondent is a self-employed residential designer with over 28 years’ experience, but no formal education beyond graduation from high school. Sometime in 2002, while on an errand to the Health Department of Jefferson County, Florida, Respondent met Carrie Howard, who was waiting there to get minnows for her small fish pond to combat a mosquito problem. Howard struck up a conversation with Respondent, learned that Respondent was a draftsman, and asked him for assistance in drafting a set of plans for an addition to her church, as well as a renovation of that building. As Howard explained at the final hearing, she had obtained the concept for the plans, for which she sought Respondent’s assistance, in a vision. She had a sketch of what she envisioned and showed the sketch to Respondent.

4. Respondent agreed to assist Howard and her church by preparing plans which the church could then use to obtain cost figures and contractor bids to aid the membership of the church in determining whether the proposed addition and renovation to the church building (the project) was financially feasible. At no time did Respondent presume to act as an architect in violation of Florida Statutes.

5. Howard’s church is the Mount Pleasant Baptist Church.

   
   

   The proposed addition and renovation of the church (the project) per plans drawn by Respondent consisted of 3,247 square feet of heated area, 121 feet of covered entry foyer, and 68 square feet of covered landing.

6. Respondent’s drawings consisted of eight pages; two pages of elevations, a third page of floor plan, a fourth plan with basic construction details, a fifth page with electrical layouts, a sixth floor dealing with the finish flooring, a seventh page exhibiting typical cross sections and a partial left side, and the eighth page depicting the foundation plan.

7. Each page of the project plans sets forth Respondent’s name and also the cautionary warning or caveat that the builder is to supply all required engineering, comply with all local and state codes, and verify all dimensions and details prior to commencing construction.

8. Respondent, operating as an employee of the church in his capacity as a draftsman, delivered the project plans to the church representatives. They, in turn, used the plans in the formulation of the church’s financial decision and discussions with building contractors. A contractor was selected. Upon the filing of the project plans with the county building department by someone unconnected with Respondent, a permit was issued for construction.

9. Respondent received a “donation” according to Howard of

   
   

   $1,000 for his efforts on behalf of the church. Respondent’s candid testimony is that he expended 90 hours on the project and would normally have received in excess of $3,000 for his efforts. He accepted the lesser amount in an effort to assist the church.

10. Barry Wilson, a Florida licensed architect and the complainant that initiated the chain of events leading to this proceeding, specializes in church design. Observing activity at the church construction site, he went to the county building department on August 23, 2004, and requested to see the plans. Observing no imprimatur of a licensed architect on the plans, Wilson proceeded to file his complaint. In view of his conflicting dual role as complainant and as expert witness for Petitioner, Wilson's testimony relating to matters of expertise is not credited.

11. Respondent was very creditable at the final hearing.

    
    

    He was not aware that his activity on behalf of the church would be construed as the practice of architecture, and maintains that he did not knowingly violate any law prohibiting the unlicensed practice of architecture. In an appropriate exhibition of remorse, Respondent stated that he had only provided design services in connection with one other church and certainly would not have provided such services in this instance if he had known that such action was considered illegal.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 120.569 and 120.57, Fla. Stat.

    
    

13. Because Respondent is subject to penal sanctions in this proceeding, i.e., the imposition of an administrative penalty, Petitioner has the burden of proving by clear and convincing evidence the specific allegations in the Administrative Complaint. See, e.g., Department of Banking and

    Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

    
    

14. Section 481.223(1)(a), Florida Statutes, prohibits a person to knowingly practice architecture unless the person is an architect or a registered architect.

15. Accordingly, at issue in this proceeding is whether the design work and plans provided by Respondent for the Mount

    Pleasant Baptist Church constitutes engaging in the practice of architecture. Section 481.203(6), Florida Statutes, defines "Architecture" as follows:

    . . . 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, job- site inspection, and administration of construction contracts.

    
    

    § 481.203(6), Fla. Stat.

    
    

16. Section 481.229(1)(c), Florida Statutes, provides an exception to the requirements that a person be licensed as an architect as follows:

    1. No person shall be required to qualify as an architect in order to make plans and specifications for, or supervise the erection, enlargement, or alteration of:

       1. Any building upon any farm for the use of any farmer, regardless of the cost of the building;

       2. Any one-family or two-family residence building, townhouse, or domestic outbuilding appurtenant to any one-family or two-family residence, regardless of cost; or

       3. Any other type of building costing less than $25,000, except a school, auditorium, or other building intended for public use, provided that the services of a registered architect shall not be required for minor school projects pursuant to s. 1013.45.

          
          

17. Petitioner's burden to provide clear and convincing evidence in this matter necessarily extends to proof of lack of

    entitlement by Respondent to any exemption from the accusation of unauthorized practice of architecture. In that regard, a close examination of the provisions of Section 481.229(1)(c), Florida Statutes, set forth above, in the context of the credible record evidence presented in this case fails to reveal what the cost of the project was contemplated to be or whether it exceeded $25,000. The record is bereft of evidence that the building, to be owned by a private voluntary association, would be put to any use other than that of its membership. The project contemplated in this case was a church, not a structure that would house a commercial venture.

18. While the local county government in this case issued a commercial building permit at the instigation of someone other than Respondent, such an action, absent further alliteration, should not, and is not determinative of the nature of the project in question. To presume otherwise is to subscribe to the correctness of the words of Daniel Defoe (an English writer remembered particularly for his novel about Robinson Crusoe), written many years ago, that:

    Wherever God erects a house of prayer, The Devil always builds a chapel there; And ’t will be found, upon examination, The latter has the largest congregation.1/

19. Petitioner has not met its burden of proof in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 13th day of June, 2005, in Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 13th day of June, 2005.

ENDNOTE

1/ The True-Born Englishman. Part I, Line 1, Daniel Defoe. (1660?-1731)

COPIES FURNISHED:

David K. Minacci, Esquire Smith, Thompson, Shaw and

Manausa, P.A.

2075 Centre Pointe Boulevard Tallahassee, Florida 32308-4893

W. R. Braren, III

3007 Waukeenah Highway

Monticello, Florida 32344

Juanita Chastain, Executive Director Architecture and Interior Design Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Leon Biegalski, General Counsel 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: 05-000552

Orders for Case No: 05-000552