STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF ARCHITECTURE AND INTERIOR ) DESIGN, )

)

Petitioner, )

)

vs. ) Case No. 12-1516

) DIAZ AND RUSSELL CORPORATION ) AND NELSON R. DIAZ, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on October 30, 2012, by video teleconference with connecting sites in Miami and Tallahassee, Florida, before Errol H. Powell, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David K. Minacci, Esquire

Smith, Thompson, Shaw, Minacci & Colon, P.A.

3520 Thomasville Road

Tallahassee, Florida 32309-3469

For Respondents: Nelson R. Diaz, pro se

Diaz and Russell Corporation

12550 Biscayne Boulevard, Suite 211 North Miami Beach, Florida 33181

STATEMENT OF THE ISSUE

The issue for determination is whether Respondents committed the offenses set forth in the Administrative Complaint, filed on February 14, 2012, and, if so, what action should be taken.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation, Board of Architecture and Interior Design, hereinafter Department, issued an Administrative Complaint against Diaz and Russell Corporation, hereinafter Corporation, and Nelson R. Diaz, which was filed on February 14, 2012. The Department charged the Corporation and Mr. Diaz with a two-count Administrative Complaint: Count 1--violating section 481.223(1)(a), Florida Statutes, by practicing architecture through the offering of architectural services without holding a valid architectural license; and Count 2--violating section 481.219(2), Florida Statutes, by offering architectural services without a certificate of authorization. The Corporation and Mr. Diaz disputed the material allegations of fact and requested a hearing. On April 23, 2012, this matter was referred to the Division of Administrative Hearings.

At hearing, the Department presented the testimony of four witnesses, including Mr. Diaz, and entered ten exhibits (Petitioner's Exhibits numbered 1 through 10) into evidence.

Mr. Diaz testified on his own behalf and the Corporation and entered no exhibits into evidence.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The transcript, consisting of one volume, was filed on November 30, 2012. Both parties filed timely their post- hearing submissions, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with regulating the practice of architecture and interior design pursuant to chapters 455 and 481 and section 20.165, Florida Statutes.

2. Additionally, the Department has jurisdiction over the unlicensed practice of architecture pursuant to sections 455.228(1) and 481.223(1)(a), Florida Statutes.

3. At all times material hereto, the Corporation and Mr. Diaz were not registered or certified to engage in the practice of architecture pursuant to chapter 481, Florida Statutes.

4. Mr. Diaz is a Florida-licensed general contractor.

   
   

5. Mr. Diaz is the president of Diaz and Russell.

   
   

6. In or around June 2010, Mr. Diaz prepared a written proposal, on behalf of the Corporation, for Teddy Trading, LLC/Atlantic Biological to partition a building located at 16000 Northwest 49th Avenue, Miami, Florida, to give access to a tenant, SP Pool Corporation. The total cost of the project was

   $5,900.00.

   
   

7. Among the services offered by the written proposal were architectural drawings. No dispute exists that the written proposal was offering architectural services.

8. Teddy Trading, LLC/Atlantic Biological owned the building.

9. Atlantic Biological, a pharmaceutical distributor, owned Teddy Trading, LLC.

10. The cover page of the written proposal reflects the Corporation. The written proposal identifies the Corporation as the "contractor" for the project.

11. The written proposal was prepared on the letterhead of Diaz and Russell Construction Company. Mr. Diaz is also the president of Diaz and Russell Construction Company.

12. On or about June 25, 2010, a check from Atlantic Biological, made payable to Diaz and Russell Construction Company in the amount of $2,950.00, was paid as a deposit on the project.

    
    

13. Mr. Diaz admitted that he received the deposit. An inference is drawn and a finding of fact is made that, even though the deposit was made payable to Diaz and Russell Construction Company, the Corporation and Mr. Diaz received the

    $2,950.00 as the deposit on the project.

    
    

14. Mr. Diaz hired an architect to prepare the architectural drawings for the project.

15. The written proposal, offering architectural services, did not identify the Florida licensed architect who was to prepare the architectural drawings.

16. No dispute exists that the written proposal was a design-build contract offering architectural services.

17. No dispute exists that chapter 481, Florida Statutes (2009) and (2010),1/ provides an exception to Florida licensed general contractors under a design-build contract for offering architectural services. Section 481.229 provides in pertinent part:

    (3) Notwithstanding the provisions of this part, a general contractor who is certified or registered pursuant to the provisions of chapter 489 is not required to be licensed as an architect when negotiating or performing services under a design-build contract as long as the architectural services offered or rendered in connection with the contract are offered and rendered by an architect licensed in accordance with this chapter.

    (emphasis added).

    
    

18. The Department's expert, Miguel Rodriguez, testified that the written proposal, offering the architectural services, does not fall within the design-build exception because it offered architectural services without providing the identity of the Florida licensed architect who was to provide the architectural services. Mr. Rodriguez's testimony is found to be credible.

19. The original permit application was dated July 16, 2010. The Corporation is listed as the contractor on the permit application. Several architectural drawings were submitted to the Building Department of the City of Miami Gardens on the project; however, all of the architectural drawings were rejected by the Building Department. The Corporation and

    Mr. Diaz never provided permit-ready architectural drawings.

    
    

20. Atlantic Biological terminated the Corporation and Mr. Diaz from the project.

21. In November 2010, Atlantic Biological obtained the services of a Florida licensed architect, Mr. Rodriguez, to complete the project. Mr. Rodriguez prepared his own architectural drawings, not using any of the drawings from the Corporation and Mr. Diaz. He obtained a permit for the project in approximately two months.

    
    

22. The Department asserts but the evidence was insufficient to demonstrate that SP Pool Corporation suffered damages due to the delay in completing the project.

23. In a previous case, on or about April 4, 2007, Diaz and Russell Architects & Assoc. Corp. of which Mr. Diaz was the president executed a sworn affidavit, after having received from the Department a Notice and Order to Cease and Desist offering architectural and interior design services, to cease offering architectural and interior design services; to change its web site and business name deleting any references to architecture and interior design; and to come into compliance.

24. As of August 15, 2012, five years later, the Corporation and Mr. Diaz continued to offer architectural services on its website in violation of the Notice and Order to Cease and Desist.2/ Further, Mr. Diaz admitted that he and the Corporation had continued to offer architectural services.

25. The evidence failed to demonstrate costs, excluding attorney's time, in the instant matter.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes (2012).

    
    

27. The Department has the burden of proof to show by clear and convincing evidence that the Corporation and Mr. Diaz committed the offenses set forth in the Administrative Complaint. Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris

    v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

28. Section 481.223 provides in pertinent part:

    
    

    1. A person may not knowingly,

       
       

       (a) Practice architecture unless the person is an architect or a registered architect

       . . .

       
       

29. Section 481.219 provides in pertinent part:

    
    

    (2) For the purposes of this section, a certificate of authorization shall be required for a corporation, limited liability company, partnership, or person practicing under a fictitious name, offering architectural services to the public jointly or separately. . . .

    
    

30. The evidence is clear and convincing and demonstrates that the Corporation and Mr. Diaz knowingly offered architectural services in the written proposal.

31. The evidence is clear and convincing and demonstrates that the Corporation and Mr. Diaz offered architectural services, as a corporation, in the written proposal without possessing a certificate of authorization.

32. The remaining question is whether the offering of architectural services in the written proposal fell within the

    
    

    exception found at section 481.229(3). The testimony of the Department's expert is found to be credible. Even though Mr. Diaz is a Florida licensed general contractor and the written proposal was a design-build contract, the Florida licensed architect was not identified in the written proposal

    offering the architectural services. The evidence is clear and convincing and demonstrates that the design-build exception is not applicable to the instant case.

33. Therefore, the evidence demonstrates that the Corporation and Mr. Diaz violated sections 481.223(1)(a) and 481.219(2).

34. As to penalty, the Department suggests that section 455.228(1) is applicable. Section 455.228 provides in pertinent part:

    1. When the department has probable cause to believe that any person not licensed by the department, or the appropriate regulatory board within the department, has violated any provision of this chapter or any statute that relates to the practice of a profession regulated by the department, or any rule adopted pursuant thereto, the department may issue and deliver to such person a notice to cease and desist from such violation. In addition, the department may issue and deliver a notice to cease and desist to any person who aids and abets the unlicensed practice of a profession by employing such unlicensed person. The issuance of a notice to cease and desist shall not constitute agency action for which a hearing under ss.120.569 and 120.57 may be sought. For the purpose of enforcing a

       
       

       cease and desist notice, the department may file a proceeding in the name of the state seeking issuance of an injunction or a writ of mandamus against any person who violates any provisions of such notice. In addition to the foregoing remedies, the department may impose an administrative penalty not to exceed $5,000 per incident pursuant to the provisions of chapter 120 or may issue a citation pursuant to the provisions of subsection (3). If the department is required to seek enforcement of the notice for a penalty pursuant to s. 120.569, it shall be entitled to collect its attorney's fees and costs, together with any cost of collection.

       
       

       Even though the Department is seeking an administrative penalty of $5,000.00 per incident, it has not served a notice of a penalty and is not seeking to enforce the notice for a penalty. Therefore, section 455.228(1) is not applicable to the instant case.

35. However, the Administrative Complaint provides section

    
    

    455.227 as the applicable penalty provision. Section 455.227 provides in pertinent part:

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

       
       

       * * *

       
       

       (q) Violating any provision of this chapter

       . . . .

       
       

       * * *

       
       

    2. When the board, or the department when there is no board, finds any person guilty of the grounds set forth in subsection (1)

       
       

       . . . it may enter an order imposing one or more of the following penalties:

       
       

       * * *

       
       

       (d) Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

       
       

       * * *

       
       

    3. (a) In addition to any other discipline imposed pursuant to this section or discipline imposed for a violation of any practice act, the board, or the department when there is no board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time.

    
    

36. The Department suggests the imposition of a penalty in the amount of $5,000.00 per count and the payment of costs, excluding attorney's time, in the amount of $6,867.53.

37. The imposition of $5,000.00 per count is reasonable under the circumstances demonstrated in the instant case taking into consideration the prior Notice and Order to Cease and Desist in 2007 and the violations committed in 2010.

38. Even if the Department determines that section 455.228 is applicable, but that section 455.227 is not applicable, the imposition of $5,000.00 per count under section 455.228 is reasonable under the circumstances demonstrated in the instant case.

39. The Department failed to demonstrate costs, excluding attorney's time.

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation, Board of Architecture and Interior Design, enter a final order:

1. Finding that Diaz and Russell Corporation and Nelson R. Diaz violated section 481.223(1)(a), Florida Statutes, in Count I, and violated section 481.219(2), Florida Statutes, in Count II; and

2. Imposing an administrative fine in the amount of

$5,000.00 per count, totaling $10,000.00.

DONE AND ENTERED this 13th day of February, 2013, in Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2013.

ENDNOTES

1/ All future references to Florida Statutes will be for 2009 and 2010, unless otherwise indicated.

2/ Mr. Diaz's contention that the website did not exist on August 15, 2012, is found to be not credible.

COPIES FURNISHED:

David K. Minacci, Esquire

Smith, Thompson, Shaw, Minacci & Colon, P.A.

3520 Thomasville Road

Tallahassee, Florida 32309-3469

Nelson R. Diaz

Diaz and Russell Corporation

12550 Biscayne Boulevard, Suite 211 North Miami Beach, Florida 33181

J. Layne Smith, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Anthony B. Spivey, Executive Director Board of Architecture and Interior Design 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: 12-001516

Orders for Case No: 12-001516