Findings Of Fact Petitioner, Jorge L. Garcia, is an applicant for licensure by examination to practice architecture in the State of Florida. The architecture examination in the State of Florida is of seven parts, part of which is the written examination and the rest of which is a site and design examination, which is given in June of each year. Petitioner took the building design portion of the Architecture Registration Examination in June, 1985. This portion of the examination consists of a 12-hour sketch problem involving building design considerations. The examination is administered by the Office of Examination Services of the Department of Professional Regulation, and is supplied to the State of Florida as well as to all of the jurisdictions of the United States by the National Council of Architectural Registration Boards (NCARB). The examination itself involves the design of a structure by an applicant which meets specific requirements for placing the structure on the site, elevations, building cross- sections, facades, and floor plans. The program for the 1985 examination called for the design of a city administration building. Information supplied to the applicant includes a pre-examination booklet setting forth the architectural program to be accomplished and the various requirements to which the applicant is expected to apply himself in order to receive a passing grade. Applicants also may study a series of solutions proposed by previous successful and unsuccessful applicants so that they may anticipate and apply successful solutions when taking their own examination. At the time of the examination itself, other information is supplied to the applicant to enable him to more adequately design the structure requested and perform the necessary technical architectural requirements. In general, the purpose of the examination is to require the applicant to put together a building design solution in response to a program submitted to him by NCARB. This portion of the examination therefore, allows the national testing service grading the examination, and through it, the Florida Board of Architecture, to determine whether the applicant is able to coordinate the various structural, design, technical, aesthetic, energy, and legal requirements. The grading of the building design problem is accomplished by the review of the applicant's proposed examination solution by at least three architects selected by the various architectural registration boards of some 20 states who are then given training by NCARB to standardize their conceptions of the minimal competency required for a passing grade. Each architecture grader is then asked to review various solutions by applicants on a blind grading basis. That is, the grader has no knowledge of the name or state of origin of the applicant whose examination solution he is grading. The grader is instructed to take into consideration various criteria as set forth in Rule - 21B-14.03, Florida Administrative Code. Graders are instructed to make notations or areas of strength and of weakness on the grading criteria and then to determine, based upon an overall conception of each applicant's submission, whether or not a passing grade of 3 or 4 as set forth in Rule 21B-14.04, Florida Administrative Code, has been earned. A method used to ensure independent and confidential grading of a solution is the folding of a single score sheet in such a way as to not allow subsequent graders to see the previous score. Approximately 3 and one-half minutes is utilized as the time in which each grader has to grade each applicant's exam. Page 7 of the Juror's Manual (graders manual) points out: Examinees are entitled to make some mistakes. The program analysis, design , development and drafting are hurriedly executed in a tense situation, without recourse to normal office reference materials (Sweets catalogs Architectural Graphic Standards, etc.) and without customary time for deliberation and critique by others. Jurors (graders) are permitted to recommend changes to an applicant's submission to bring it up to passing. In order for an applicant to pass, he must receive at least two passing grades from the at least three architects who independently grade the applicant's submission. In the instant case, the Petitioner received three 2's (which are failing grades) and one 3 (which is a passing grade). Petitioner's exam solution presented a borderline case since one of the three graders who originally graded his exam gave him a passing grade. His response to notification of failure to pass this portion of the exam was a timely request for a Section 120.57(1) hearing and this proceeding ensued. While Petitioner attempted to comply with the instructions as set forth in the examination and pre-examination booklets, it is clear that in several material areas he failed to achieve requisite minimal competency necessary to receive a passing score on the examination. The testimony of Arnold Butt, Registered Architect, former chairman of the Department of Architecture at the University of Florida and a master grader in the building design examination, is the only expert testimony of record. In Butt's opinion, Petitioner's submission contained several material departures from specific program requirements applicable to the 1985 examination. Specifically, Petitioner failed to place in his submission a delivery system, thus failing to meet program requirements, and showed no method of entry or egress. Further, there was no method of entry or egress from the river walk. Although Butt complimented Petitioner in overcoming one type of circulation problem that was overlooked by many other applicants at the same examination, Petitioner's circulation design was still full of many errors described by Mr. Butt, including life safety factors. Mr. Butt admitted that the graders had not marked life safety as a weakness present in Petitioner's exam. However, Butt's critique of Petitioner's circulation problems shows circulation overlaps into the area of "design logic." For other reasons, including but not limited to Petitioner's showing of certain features such as windows only upon the elevation sheets (as opposed to upon other sheets as well) and failure to show all of an access road, his errors and omissions also overlap into the evaluation criteria of "clarity and completeness of presentation." While Petitioner attempted to show, through use of the publication of NCARB which contains within it samples of various passing and failing examinations, that his examination submission was similar to those which had been recorded as passing grades, he was unsuccessful in discrediting the overall perception of Butt that there were significant difficulties in Petitioner's design solution which, taken as a whole, were much more numerous than the various solutions (both passing and failing) which were compared with Petitioner's solution. In a review of the sample solutions, Butt conceded that some of the errors that Petitioner made were also made by some of the candidates who achieved passing scores. However, Petitioner's examination submission contained a combination of many errors in one paper, which same errors may have existed only individually in some of the passing examples. In short, Petitioner's reliance on the NCARB-produced review booklet is misplaced in that his submitted solution to the problem presented a conglomeration of many of the errors which may have been passing if presented individually in various of the examples contained in the NCARB manual. Petitioner, who has the burden of proof in these de novo proceedings, has therefore failed to demonstrate that his examination solution exhibits minimal competency within the criteria necessary for a passing score.
Recommendation Therefore, it is, RECOMMENDED that the Board of Architecture enter a Final Order affirming that Petitioner has failed the licensure examination for 1985. DONE and RECOMMENDED this 12th day of June, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2195 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF). Petitioner's Proposed Findings of Fact: 1-2. Covered in Recommended Order FOF 1-3. 3-4. Covered in FOF 10. 5-7. Those portions not accepted are rejected as not supported by the greater weight of the competent substantial evidence as a whole as set forth in FOF 11-12. Further, Mr. Butt testified that once the Petitioner's solutions to the problem were utilized, it was probable the graders would not give him the benefit of the doubt to recommend changes to his submitted because any reasonable solutions they might propose would require almost total redesign of his proposed building instead of the minimal changes they might be permitted to recommend. Rejected as not supported by the competent substantial evidence as covered in FOF 7. Three and 1/2 minutes was given as a fair estimate of the time actually used, not the time permitted. Covered in FOF 9; see also ruling on proposals 5-7 above. Covered in FOF 10; see also ruling on proposals 5-7 above. Accepted but immaterial and not dispositive of any issue at bar. The graders were not precluded from making more than three recommended marks. Respondent's Proposed Findings of Fact: Covered in FOF 1; that which is rejected is subordinate and unnecessary. Covered in FOE 2. Covered in FOE 4 and 6. Covered in FOF 7 and 10. Covered in FOE 10. 6-7. Covered in FOF 11 and 12 but substantially modified for independent clarity of expression. COPIES FURNISHED: Pat Ard, Executive Director DPR-Board of Architecture 130 North Monroe Street Tallahassee, Florida 32399-0750 Jorge L. Garcia 1744 Southwest First Avenue Miami, Florida 33134 Jorge L. Garcia 231 Southwest 52nd Avenue Miami, Florida John Rimes, Esquire Department of Legal Affairs The Capitol - LL04 Tallahassee, Florida 32399-1050 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The sole issue in this cause is whether the Petitioner should have received a passing grade on the design and site planning portion of the National Architectural Examination, which he took in June, 1982. Both parties submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Petitioner, Daniel T. Canavan, is an applicant for licensure by examination to practice architecture in Florida. The architectural examination in Florida is administered in two parts: a written examination given in December of each year, and the design and site planning examination given in June of each year. Canavan met all requirements for admittance to the licensure examination. Canavan took the design and site planning portion of the National Architectural Examination in June, 1982. This examination consisted of various design and site problems to be resolved in drawings to be completed within 12 hours. The examination is administered by the Office of Examination Services of the Department of Professional Regulation. The examination is prepared and supplied to the Office of Examination Services by the National Council of Architectural Registration Boards (NCARB). The design and site planning portion of the examination for June of 1982 required the design of a small airport terminal by the applicant to include drawings of the structure on the site, exterior elevations, interior floor plans and cross-sections of the building interior. Canavan, together with the other applicants, was supplied information and a preexamination booklet setting forth generally the architectural program to be accomplished and the various requirements which the applicants would be expected to sketch. At the time of the examination, other information was supplied to the applicants to enable them to more adequately design the structure requested and meet the necessary architectural requirements. The examination of the Petitioner, together with the examinations of the applicants from some 20 states using the NCARB standardized examination, were graded at one time by graders of the NCARB. Each state participating in the examination process provides at least two qualified architects to function as graders. These graders are given specific training by NCARB to standardize their grading approach to the examination. The examinations of all the applicants are divided among the various graders on a blind grading basis in such a manner that the grader has no knowledge of the name or state of origin of the applicant whose examination he is grading. Graders look at the applicant's overall plan to determine whether the applicant has met or failed to meet the requirements. The grader makes notations of specific areas of weakness based upon the grading criteria and based upon the overall conception of the applicant's submission. Each examination is graded by a minimum of two graders, who grade the examination independently. If the examination receives a failing grade from each of the independent graders, it is graded by a third grader. The Petitioner's examination was graded in accordance with the above process and received a failing grade, indicating that it was graded by three independent graders. The Petitioner was notified of his failure to pass the examination and given notice of his right to a formal hearing. Jeff Hoxie, who was one of the graders on the June 1982 examination and who is an experienced architect licensed in the State of Florida, reviewed the Petitioner's examination in the manner that it would have been assessed by the graders, explaining the process generally and explaining the specific deficiencies which he noted. He used the original grader's comments regarding the deficiencies noted as a point of departure to explain his assessment of the Petitioner's examination. The Petitioner failed to follow specific examination requirements as to the required sizes of specific floor areas, failed to follow building code requirements in his design of the kitchen and restaurant, and failed to properly draw the sketch required of the structural and mechanical elements of the building. While there were other areas of weakness noted, Mr. Hoxie stated that the major failures listed above would justify a failing grade. Petitioner's testimony revealed that he had made a mistake in sketching one plan, and that, because of this mistake and the corrections which Petitioner made, he ran out of time, which resulted in the specific failings noted by the three graders at the national level and confirmed by Mr. Hoxie.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Board of Architecture of the State of Florida fail the Petitioner, Daniel T. Canavan, on the design and site planning portion of the National Architectural Examination taken by Canavan in June, 1982. DONE and RECOMMENDED this 11th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1983. COPIES FURNISHED: Mr. Daniel T. Canavan 814 Avenida Hermosa West Palm Beach, Florida 33405 John J. Rimes, III, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Herbert Coons, Executive Director Board of Architecture 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner Claudio Ricardo Ramos was a candidate on the 1982 Architecture Design and the Site Planning Examination administered on June 14- 16, 1982 by the Department of Professional Regulation. He is a graduate of the University of Miami with a Bachelor of Architecture Degree and is presently employed by an architecture firm in Miami, Florida. On September 10, 1982 Petitioner was informed by the Department that he had received a failing grade on Part A of the examination. After a review of his examination he requested a formal hearing to contest his failing grade. That request initiated these proceedings. The professional architecture examination consists of two parts, Part A and Part B. Part A is known as the site planning and design portion of the exam. It requires a candidate to draw a solution to a problem involving (a) site plans, (b) floor plans, (c) building sections, (d) two significant building elevations, (e) diagrams of structural systems, (f) diagrams of environmental control systems, and (g) a typical wall section. Part A is blind-graded by at least two examiners designated and approved by the Department. Each examiner judges the individual applicant's entire work product pursuant to evaluation criteria set out in Section 21B- 14.03(1), Florida Administrative Code. Grades ranging from 1 through 4, depending on the quality of the work, are awarded by each examiner. An applicant must have a minimum average of 3 in order to pass Part A of the examination. On the June 1982 examination, all candidates were required to design a small municipal airport terminal building in a midwestern location. The problem required a site plan, ground level plan-north elevation, second level plan, and a cross-section of the facility. While Petitioner demonstrated on his examination that an effort had been made to comply with the instructions set out in the examination and preexamination booklet, he failed in several significant areas to design a structure consistent with the program's requirements. His design for the terminal failed to fit the criteria for floor areas, entrance- exist requirements, circulation pattern through enplaning and deplaning and to comply with the required structural and mechanical details. These deficiencies in Petitioner's design cannot be explained as merely a difference in professional judgment. They are fundamental mistakes which in some respects make his design functionally unsound. It is apparent from Petitioner's design that he spent a considerable portion of his allotted time on the ground level of the airport terminal design and then was without adequate time to prepare the second level plan and integrate that plan with the ground level. Petitioner has failed to present evidence showing that the failing grade he received was given in a capricious or arbitrary manner. Petitioner's grade was well within the range of reasonable professional judgment on what is an unsuccessful performance of the Part A examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Architecture enter a Final Order denying the application of Claudio Ricardo Ramos for licensure as an architect on the grounds that he failed to successfully pass Part A of the architecture examination. DONE and RECOMMENDED this 7th day of April, 1983, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1983. COPIES FURNISHED: Claudio Ricardo Ramos 140 Northwest 87th Avenue Apartment G-222 Miami, Florida 33172 John J. Rimes III, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Room LL04 Tallahassee, Florida 32301 Herbert Coons, Jr., Executive Director Florida Board of Architecture Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Petitioner, Glen Hamner, is an applicant for licensure by examination to practice architecture in the State of Florida. The examination consists of two parts. "Part B," which is a written examination, is given in December of each year and has already been successfully passed by the Petitioner. The other portion, "Part A," consists of a site plan and design problem and is administered in June of each year. The Petitioner met all the preliminary requirements for admittance to the licensure examination and took the subject design and site planning portion of the National Architectural Examination, adopted in Florida, in June of 1980. This portion of the examination consists of a 12-hour drafting or sketch problem involving design and site plan criteria and considerations. It is administered by the Office of Examination Services of the Department of Professional Regulation and is supplied to the State of Florida as well as all other jurisdictions in the United States by the National Council of Architectural Registration Board (NCARB). The examination problem involves requirements for placing a structure on a site, designing and drawing the elevations, the building cross-sections, the facades and the floor plan. There are few factual questions disputed in this cause. The Board of Architecture has long required examination prior to a candidate being licensed as a registered architect in the State of Florida. This statutory authorization was continued in Section 481.213(2), Florida Statutes, when it was adopted by the Legislature in 1979. The original examination administered by the Board prior to 1974 was a seven-part, 36-hour examination, including as two of its parts a site plan and design problem essentially identical to that administered in the present "Part A" of the Professional Architectural Examination which is the subject matter of this proceeding. This original seven-part examination had been administered for many years by the Board until the Board, in consultation with NCARB and other jurisdictions who are members of NCARB, determined that examination did not adequately test minimal competency to practice architecture. This ultimate determination was made after a thorough review by NCARB prior to 1974 and ultimately resulted in the creation of a new professional examination, which was adopted by all the member states and which consisted of what is now "Part B" of the Professional Architectural Examination (the written examination). The Executive Director of NCARB, Samuel Balin, was instrumental in the preparation of the initial professional examination. His testimony described the concern the National Council and the Boards had regarding the original seven-part examination, that it was an extremely technical examination, aside from the site and design plan problem, designed primarily to cover subjects which had already been covered in most accredited college degree programs. Thus, at the time the NCARB and member boards were in the process of changing over from the seven-part examination to what is now the "Part B" professional examination, NCARB and the member boards of each state were also rapidly moving toward requiring the completion of architectural degrees by candidates as a prerequisite to entry into the architectural profession. As established by this witness, NCARB research showed that much of the material contained in the seven- part examination was already adequately taught in the various universities offering architectural degree programs, and thus the examination necessary for registration should focus on the professional aspects of architecture and the practical methods by which an architect actually must provide his services to the public, rather than merely being an examination consisting of a review of what had already been taught in the colleges and universities. Based on this intensive review regarding the most appropriate means to test architectural competency based upon what candidates were already receiving in various degree programs, the two-day "Part B" examination was developed and first offered in 1973, concurrently with the seven-part examination previously in effect. It was determined by the Respondent, other state boards and the NCARB that, since many individuals had successfully completed large portions of the seven-part examination, it would be unfair to not allow them to finish the examinations they had originally begun. A minimal number of parts passed on the seven-part examination was thus required in order for a candidate to continue to attain licensure based upon that examination during the 1974 examination session. Subsequent to 1974, an individual who had not already successfully completed the entire seven-part examination was required by the Board to take what is presently "Part B" of the current examination. Thus, from 1975 through 1977, the sole licensure examination, requirement in Florida was the "Part B" written examination provided to the Florida Board by NCARB and adopted by the Florida Board in its rules as Rule 21B-2.02(1), Florida Administrative Code (1974). During the period 1974 to 1977, the Board became increasingly concerned with deficient graphic abilities of examination candidates in drafting plans, as well as their physical ability to synthesize the problems faced by an architect in building design into overall solutions and to incorporate those solutions into appropriate building and site plans for clients. Accordingly, a number of states expressed to NCARB their desire to have a site and design plan problem again incorporated into the National Architectural Examination. As a result of these requests, NCARB initiated a study to determine whether such a site and design plan problem was really a legitimate tool to test the competency of an architect in synthesizing building and construction design problems and expressing in a graphic manner the various component skills or abilities required to practice the profession of architecture and, corollarily, whether or not the lack of it in the "Part B" examination rendered it a substandard tool for determining minimal competence. The study resulted in a report by a distinguished panel of architects from various jurisdictions which recommended that, in fact, the site plan and design problem should be included in the professional examination. Florida then, in 1977, determined, based upon the evidence presented to it by NCARB, as well as through its own professional expertise, that a site and design plan problem was indeed a necessary component in determining minimal competency of architectural licensure candidates. The NCARB, at its meeting of June, 1977, thus adopted the site and design plan problem as part of the uniform National Professional Architectural Examination. The Florida Board subsequently thereto, and after receiving detailed information regarding the contents of the new portion of the national examination, proposed its own Rule 21B-2.02(2), on March 31, 1978, by notice contained in the Florida Administrative Weekly, which rule constituted Florida's adoption of the new site and design plan problem added to the National Professional Architectural Examination by NCARB. A hearing was held before the Florida Board on April 28, 1978, and the rule was certified and filed with the Secretary of State on May 30, 1978. Documents required to be filed with that rule pursuant to Chapter 120 were admitted into evidence in this proceeding. The effective date of Rule 21B-2.02(2) was June 19, 1978, therefore, subsequent to that date the professional architectural examination in Florida has consisted of two parts. One part being "Part A" which was the new site and design plan problem and the other part being the previously adopted "Part B" (multiple choice examination). The Legislature in 1979 pursuant to the Regulatory Reform Act of 1976, "sunsetted" all professional boards. The Board of Architecture was reconstituted pursuant to Chapter 79-273, Laws of Florida. Pursuant to Chapter 79-273 it was provided that all rules in existence would be repealed as of January 1, 1980. Accordingly, on December 3, 1979, the Florida Board readopted, pursuant to Section 481.209, Florida Statutes, and Section 455.217, Florida Statutes, examination rules set out in Rules 21B-14.01, 14.02 and 14.03, Florida Administrative Code (the successors to the above-cited rule) . There have been no substantive amendments to those rules since their effective date of December 23, 1979, and the issues with which the Petitioner's challenge to the rules are concerned have not been substantially affected by that readoption procedure.
The Issue The issue is whether Respondent Robert Kegan (Mr. Kegan) committed violations of Chapters 455 and 468, Florida Statutes, as alleged in an Administrative Complaint filed by Petitioner Department of Business and Professional Regulation (Department).
Findings Of Fact Mr. Kegan has a Certificate of Licensure from the Florida Building Code Administrators and Inspectors Board. He was first licensed in 1994, and, unless he renewed it, the license expired on November 30, 2008. At all times pertinent, he was the Building Code Administrator in Mt. Dora, Florida. Mr. Kegan has never been employed by the City of Leesburg in any capacity. The Department is the state agency charged with regulating the practice of building code administration and inspections pursuant to Section 20.165 and Chapters 455 and 468, Florida Statutes. Linda Renn purchased a home located at 2407 Winona Avenue, Leesburg, Florida, from Mr. Kegan and his wife pursuant to a contract entered into during March 2001. Prior to entering into the contract for sale, Ms. Renn walked through the house with Mr. Kegan. Ms. Renn was aware that it was an older home and testified, "And I felt very comfortable after leaving the home and doing the walk through that even though I was buying an older home with older home obsolescent issues types, but that the renovations were enough that I felt comfortable." Ms. Renn typed up an addendum to the contract prior to execution that stated Mr. Kegan would level a part of the house that required leveling, install an HVAC, install a 220-volt outlet for the clothes dryer, and would accomplish certain other improvements prior to closing on the home. The addendum became part of the contract for sale. Mr. Kegan provided Ms. Renn with his business card indicating that he was the Building Code Administrator in Mt. Dora. Ms. Renn observed Mr. Kegan in a shirt with the Mt. Dora logo upon it, indicating that he was a building official of Mr. Dora, and she visited him in his office in Mt. Dora. There is no question Ms. Renn was aware that he was a building official in Mt. Dora. Ms. Renn claimed that because he was a building official she completely relied on the representations he made to her. However, this assertion lacks credibility because she employed an independent home inspector prior to closing. During the walk-through, the HVAC was resting upon the floor of the home's garage. However, at a time between March 17 and April 29, 2001, Mr. Kegan had the HVAC installed, as he agreed. Subsequently, Ms. Renn discovered this work was accomplished by an unlicensed individual. An inspection of the premises was conducted by Guy Medlock of Benchmark Building Inspections, Inc., on March 29, 2001. A report was issued on March 30, 2001. The report noted that the dwelling was 53 years old and had problems that one would expect from a home that old. Mr. Medlock also noted that the house had a lot of charm. Mr. Medlock's inspection noted that the dwelling required roof repairs and wood rot repairs. It was noted that it was necessary to ameliorate water leaks and correct electrical deficiencies, among other items. There were seven items noted with estimated costs of repair ranging from $50.00 to $150.00. At the time of the inspection, the 220-volt receptacle had not been installed for the washer and dryer. Mr. Medlock further noted that there was no plumbing available for the washer. Because of Mr. Medlock's report, Ms. Renn was well aware of the defects he noted, and she knew this prior to closing. The report stated that he, Mr. Medlock, had discussed the electrical deficiencies with Ms. Renn and suggested that she have an electrician inspect the dwelling. Ms. Renn testified that she gave greater weight to Mr. Kegan's knowledge than to the home inspector that she hired, but there is no basis in the record for her to arrive at that conclusion. On April 29, 2001, the day before closing, Economy Electric of Eustis, Florida, installed a 220-volt line, and Mr. Kegan paid for this work. Economy Electric's principal is Larry New. He is licensed to accomplish electrical work. He performed additional electrical work that was paid for by Ms. Renn, including upgrading wires so that her computer would not be damaged by bad wiring. On April 30, 2001, Mr. and Mrs. Kegan conveyed the premises to Ms. Renn by warranty deed. Subsequently, Ms. Renn concluded that she was not happy with certain facets of the house, and tried to contact Mr. Kegan to have her perceived problems corrected. Mr. Kegan was difficult to contact. In a letter dated November 4, 2001, Ms. Renn filed a 16-page complaint with the Department alleging numerous Florida Building Code violations by Mr. Kegan. She requested that the Department investigate these alleged violations. Sometime immediately prior to January 10, 2002, Ms. Renn had Raymond Anderson of Suter Air Conditioning, Inc., of Leesburg, inspect the HVAC. He made Ms. Renn aware of several city code infractions involving the HVAC. Sometime immediately prior to January 11, 2002, Ms. Renn had someone named James A. Dolan inspect the electrical service at the premises. In a letter dated January 11, 2002, Mr. Dolan stated that there were "national electrical code violations" at the house and that it was his opinion that an electrical inspector or building code official should look into the situation. Ms. Renn believed this to be true. Sometime immediately prior to February 5, 2002, Ms. Renn had the electrical service inspected by Bronson Electric Service, Inc., of Eustis, Florida. In a letter dated February 5, 2002, David E. Bronson reported numerous electrical deficiencies, including an improperly fused air conditioning unit. Mr. Bronson found that the electrical service to the house required an upgrade to 150 amps because the current service was inadequate. He quoted a price of $1,546.00 to accomplish the required modifications. Ms. Renn believed this to be accurate. Ms. Renn employed an inspector from Ocala, Florida, who prepared an inspection report dated May 10, 2002. She learned there were plumbing, electrical, and mechanical problems. She also learned that the roof did not meet building code standards. She noted that for a period of two and one-half years, the HVAC neither cooled nor heated, although it did make some noise. Permits were required for the electrical upgrade and for the air conditioning installation in Ms. Renn's house. No permits were obtained by Mr. Kegan, or his friends, or persons he employed to work on Ms. Renn's house, as were required by the City of Leesburg. By April 18, 2002, all permits had been obtained. Unlicensed persons worked on both the HVAC installation and the electrical upgrade. Work of that sort is lawful only if accomplished by licensed persons. The work accomplished without the appropriate permit and the work done by unlicensed persons, was done under the control of Mr. Kegan. Ultimately, Larry New, a licensed electrician, and Jimmy Harris, a licensed person, fixed all of the problems; got the work inspected; and ensured that all permits were in place. After her complaint to the Department which was drafted November 4, 2001, and submitted in early 2002, Ms. Renn was informed by the Department that she should handle the case locally. Complaints were made by Ms. Renn to the Leesburg Building Department and to many other officials of the Leesburg municipal government. Ultimately, a hearing regarding Mr. Kegan was held before the Lake County Board of Building Examiners (County Board) on August 7, 2003, in Tavares, the county seat of Lake County. Both Leesburg and Mt. Dora are in Lake County. The County Board heard charges against Mr. Kegan's contractor's license for accomplishing work in the trades of roofing, electrical, mechanical, and plumbing using unlicensed workers and failing to obtain permits. It imposed sanctions, including a $1,000 fine. The County Board required Mr. Kegan to do the work he promised, but it was clear that he had already accomplished that work, except for some roofing issues not further identified. The County Board did not address his position as the Building Code Administrator in Mt. Dora, Florida. The action of the County Board was subsequently reversed by a circuit court. Relations between Ms. Renn and Mr. Kegan eventually deteriorated to the point where Ms. Renn had a trespass warning served on Mr. Kegan and sought to have the state attorney prosecute him for trespass. She was not successful in this. She also sued Mr. Kegan civilly, but eventually she voluntarily dismissed the case. None of the actions taken by Ms. Renn, resulted in Mr. Kegan being disciplined. At some point thereafter, Ms. Renn appeared to be satisfied with her house and the retaliation she had visited upon Mr. Kegan. However, while Ms. Renn was "working on legislation" in Tallahassee, Florida, in 2006, she was asked by a Department attorney to reopen the case. Other than the transcript from the County Board hearing of August 7, 2003, nothing had changed. Every problem she had with the house that should have been ameliorated, had been ameliorated. Nevertheless, she did as asked by the Department attorney, and this case was filed. Ms. Renn sent two letters dated April 3, 2006, and one letter dated April 21, 2006, to the Chief Professions Attorney of the Department. The latter missive was a follow-up to the April 3, 2006, communications. The April 3, 2006, communications are considered complaints as contemplated by Subsection 468.619(4), Florida Statutes (2005). There is no evidence of record that Mr. Kegan was informed of the complaint or that he was permitted 30 days to respond as contemplated by Subsection 468.619(4)(b), Florida Statutes (2005). There is no evidence of record that the Department submitted the complaint regarding Mr. Kegan to a probable cause panel for review as contemplated by Subsection 468.619(4)(b), Florida Statutes (2005), within 180 days. There is no evidence to the contrary, either. In summary, the Department has proven that Mr. Kegan, during 2001 and 2002, caused work to be accomplished at 2407 Winona Avenue, Leesburg, Florida, when he owned the house, as well as after he sold the house to Ms. Renn, and this work was done without proper permits and, on occasion, by persons who had no license when a license was required.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation dismiss the Administrative Complaint in the case of Robert Kegan. DONE AND ENTERED this 13th day of January, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 January, 2009. COPIES FURNISHED: Harry T. Hackney, Esquire Harry Thomas Hackney, P.A. 3900 Lake Center Drive, Suite A1 Mount Dora, Florida 32757 Elizabeth F. Duffy, Esquire Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robyn Barineau, Executive Director Building Code Administrators and Inspectors Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Lewis C. Medlin, Respondent, is the holder of Certificate of Registration no. 2603, as an architect, held with the State of Florida, Division of Professions, Department of Professional and Occupational Regulations, Florida State Board of Architecture. The Petitioner has accused the Respondent of affixing his name and seal as an architect to plans, drawings and/or specifications for a two bedroom apartment building, at 8th Avenue, South, Jacksonville Beach, Florida, when the plans, drawings and/or specifications were not prepared by the Respondent or under his responsible supervising control, in violation of Section 467.14(1)(c), Florida Statutes, and Rule 21B-5.02(5), Florida Administrative Code. The facts reveal that William Stanley Smith, Jr., the President of Universal Environmental Control, Inc., had hired Donald C. Peck, a licensed Florida architect, to draw certain plans for a group of apartment buildings that were being constructed by Smith. The Petitioner's Exhibit 1, admitted into evidence, is a blueprint of the original plans. The original plans were used five or six times in constructing apartments in the Jacksonville Beach, Florida area. These plans had been submitted to the State of Florida, Department of Business Regulations, Division of Hotels and Restaurants and the Jacksonville Beach, Florida Municipal Officials, for their approval. These plans had been accepted by the mentioned agencies. Donald C. Peck moved his base of operation from Jacksonville Beach, Florida, and notified Mr. Smith of his move. The significance of this move related to the fact that Smith needed to get an architect to replace Peck on the future building projects which he intended to construct. In terminating their relationship, Peck released the original tracings to Smith, these original tracings being the basis of the blueprints which are Petitioner's Exhibit 1. The letter of release may be found as Respondent's Exhibit 1, admitted into evidence, and this letter allowed Smith to use these plans in whatever fashion he deemed appropriate. In accordance with the release, Smith hired Lewis Medlin to draw site plans for the apartment complex to be constructed at 8th Avenue, South, Jacksonville Beach, Florida. Smith also intended for Medlin to review the originals of the plans which are Petitioner's Exhibit 1, as a prelude to getting the necessary approval of the various state and local agencies. Medlin did in fact draw a site plan which is page one of Respondent's Exhibit 2, admitted into evidence. He also reviewed pages two through six of Respondent's Exhibit 2. The pages two through six are for the most part the same as Petitioner's Exhibit 1, admitted into evidence, to include mistakenly leaving the description of the property as being located at 10th Avenue and not 8th Avenue. The change noted in the Respondent's Exhibit 2 compared to Petitioner's Exhibit 1 was that involving the title block of the architect in certain pages of the drawing. The work that Medlin did on the project was in accordance with the desires of his client, Mr. Smith, and with the permission of the former architect, Peck. The question then becomes one of whether or not the Respondent has affixed his name and seal as an architect to the plans, drawings and/or specifications of the 8th Avenue, South, Jacksonville Beach, Florida project, when said plans, drawings and/or specifications were not prepared by him or under his responsible supervising control and thereby constituted violations of Section 467.14(1)(c), Florida Statutes, and Rule 21B-5.02(5), Florida Administrative Code. The pertinent part of the statute in question reads as follows: Revocation of registration certificate; reinstatement procedure, process, attorneys and counsel. - Any architect's certificate of registration issued in accordance with the provisions of this chapter shall remain in full force until revoked for cause as provided in this chapter. Any architect's registration certificate and current renewal may be suspended for a period not exceeding 12 months, or may be revoked by the unanimous vote of the members of the board setting, with a minimum of four members, in any hearing for: (c) Affixing or permitting to be affixed his seal or his name to any plan, specification, drawing, or other related document which was not prepared by him or under his responsible supervising control; (The citation of Rule 21B-5.02(5) , Florida Administrative Code is not germane to the substance of the violation and merely deals with the procedural requirements on the part of the Petitioner. Therefore, further reference to that provision is not necessary.) The key to the resolution of the issue in this cause lies in the analysis of the terms "prepared" and "responsible supervising control". This terminology has been addressed in the case of Markel v. Florida State Board of Architecture, 268 So.2d 377, (Fla. 1972). This case involved the disciplining of an architect in the State of Florida for allowing his name and seal to be affixed to certain documents which had been prepared by non-architects operating outside his control and supervision. In that particular case the initial contact with the client and the bulk of the drafting was done by the non- architect. Markel's involvement was to the extent of reviewing those plans drawn by the nonprofessionals and affixing his name and seal. The court in Markel, in addressing the question of whether this review constituted supervision, stated that it would be a "close" question. However, after considering the matter the court held that the after-the-fact ratification of a nonprofessional's drafting, would constitute approval of the prior unsupervised work product of a nonprofessional and was felt to be alien to the standards of the architectural profession. Therefore the action taken by Markel was felt to be in violation of Section 467.14(1)(c) Florida Statutes. It is evident that the drawing in question in the case at bar was not prepared by Medlin, in the sense of a line by line production or reproduction by his hand. Nor was the drawing prepared in his office where he could make periodic checks of the work product of Mr. Peck. Nonetheless, his review of the questioned document and the changes which he made constitute sufficient compliance with the law in terms of calling for his preparation and responsible supervising control. Medlin did in fact "prepare" the documents to which his name and seal were affixed as an architect and responsibly supervised and controlled that document, when perceived in the sense of making the document ready for use by his client and by the various governmental officials who would need to approve the clans. The case at bar is distinguished from that in Markel, supra, because of Medlin's direct contact with his client; the involvement of a professional in the preparation of the base document; and the fact that this close question inures to the benefit of the Respondent and not the agency. Moreover, any other result would seem to defeat the purpose of this form of regulation of the acts of the members of a profession; in that it would create unreasonable expense and hardship for the clients of this profession, without promoting any form of reasonable protection of the public against the bad acts and motives of the members of the profession or those persons with whom they may be in league. Consequently, there has been no violation of Section 467.14(1)(c), Florida Statutes. The undersigned has received and reviewed the Proposed Recommended Orders of the parties and has specifically incorporated the substance of those Recommended Orders herein, with the exception of the Conclusions of Law and Recommendation of the Petitioner which are rejected for the reasons set forth in this Recommended Order.
Recommendation It is recommended that the action by administrative complaint against Lewis C. Medlin, the Respondent, be dismissed. DONE and ENTERED this 4th day of May, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Selig I. Goldin, Esquire Post Office Box 1251 Gainesville, Florida 32602 Frederick B. Tygart, Esquire 609 Barnett Regency Tower Regency Square Jacksonville, Florida 32211
