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.
Findings Of Fact 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. Additionally, the Department has jurisdiction over the unlicensed practice of architecture pursuant to sections 455.228(1) and 481.223(1)(a), Florida Statutes. 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. Mr. Diaz is a Florida-licensed general contractor. Mr. Diaz is the president of Diaz and Russell. 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. Among the services offered by the written proposal were architectural drawings. No dispute exists that the written proposal was offering architectural services. Teddy Trading, LLC/Atlantic Biological owned the building. Atlantic Biological, a pharmaceutical distributor, owned Teddy Trading, LLC. The cover page of the written proposal reflects the Corporation. The written proposal identifies the Corporation as the "contractor" for the project. 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. 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. 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. Mr. Diaz hired an architect to prepare the architectural drawings for the project. The written proposal, offering architectural services, did not identify the Florida licensed architect who was to prepare the architectural drawings. No dispute exists that the written proposal was a design-build contract offering architectural services. 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). 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. 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. Atlantic Biological terminated the Corporation and Mr. Diaz from the project. 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. The Department asserts but the evidence was insufficient to demonstrate that SP Pool Corporation suffered damages due to the delay in completing the project. 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. 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. The evidence failed to demonstrate costs, excluding attorney's time, in the instant matter.
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: 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 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.
The Issue The primary issue for determination is whether Petitioner should be permitted to take the examination provided by Respondent to individuals seeking licensure as a certified residential contractor.
Findings Of Fact By certified mail letter dated September 8, 1989, Respondent's representative denied Petitioner's application to sitfor the residential contractor licensure examination. At all times pertinent to these proceedings, Petitioner has been licensed by Respondent as a certified underground utility contractor; a certified building contractor; a certified general contractor; a certified roofing contractor; and a certified plumbing contractor. At the present time, Petitioner's licenses as an underground utility contractor and a general contractor are inactive. Petitioner derives 60 percent of his income from consulting services and service as an arbitrator in negotiation and settlement of contracting industry disputes. Petitioner maintains that his credibility as a consultant and expert witness will be bolstered as a result of completing the specific examination for licensure as a residential contractor. Further, he maintains that possibilities of his selection as a arbitrator will also be enhanced as the result of such examination and licensure. Petitioner is also an instructor for an examination preparation organization designed to prepare individuals to pass various state and local contractor examinations, including the examination required for licensure as a certified residential contractor. Respondent's denial of Petitioner's application was predicated upon Petitioner's existing licensure status as a building contractor, as defined in Section 489.105(3)(b), Florida Statutes. As stated by Respondent's representative in the September 8, 1989 letter, Petitioner's statutory scope of work asa licensed building contractor "includes and surpasses that of a residential contractor as defined by Section 489.105(3)(c), Florida Statutes" and therefore submittal of an application for a residential contractor license did not serve the purpose of determining Petitioner's qualification for that license. An applicant who successfully completes the examination offered by Respondent for licensure as a general contractor has essentially demonstrated competency in the areas covered by Respondent's examinations for builder and residential contractor licensure. Such an applicant may be considered to have completed the examinations for competency to hold those licenses. At the final hearing, the parties stipulated that Respondent has reconsidered its denial, in part, and will issue a residential contractor license to Petitioner. While Petitioner will not be permitted to take the examination for residential contractor licensure, his previous test score from the general contractor examination will be used, by Respondent, to document Petitioner's competency as a residential contractor and to comply with statutory requirements 1/ for licensure that competency be ascertained by the applicant's completion of the appropriate examination.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that upon issuance of a residential contractor's license to Petitioner, a final order be entered dismissing, as moot, any further proceedings in this cause. DONE AND ENTERED this 12th day of September, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1990.
