Findings Of Fact Respondent holds Certificate of Registration Number 2176 as an Architect issued by Petitioner. On May 6, 1969, Wayne F. Betts, State School Board Architect, sent an office memorandum to Floyd T. Christian, State Commissioner of Education, concerning construction of relocatable facilities under the Federal Migrant Program using federal funds that had to be committed prior to June 30, 1969. Betts recommended that an architect be employed to prepare the drawings and specifications for these facilities. On May 8, 1976, Christian, in a memorandum to Betts, stated that the suggestion that "an architect be employed to assist in the preparation of drawings and specifications for the trailers to be used for migrant education is a good one and I will see that it is done." He further stated therein "we do have someone in Gainesville working on specifications and plans now, and I will take the responsibility to see that an architect is employed and have you review them before they are sent out for bids." The units to be constructed were mobile migratory kindergarten units that consisted of trailer classrooms for prekindergarten children to be used at various places throughout the state. The individual referred to in Gainesville in Christian's memorandum was James T. Glisson, an employee of the University of Florida under a federal grant to design and develop such units. Betts believed that the Respondent thereafter was hired by the Department of Education to prepare preliminary and final drawings and specifications for the mobile units, and that he also was employed as a consultant to the Department to review bids submitted on the project. Although it was customary for a standard architect's contract (AIA) to be utilized for the foregoing purposes, Betts never saw such a contract with the Respondent for his services. During subsequent weeks, Betts conferred with the Respondent on drawings and plans submitted for approval and gave final architectural approval for the project. Thereafter, Respondent reviewed the bids which had been submitted to the state pursuant to advertisement and on June 20, 1969 recommended that the low bidder, National Structures, Inc., not receive the award because its bid was not responsive to the invitation for bids in that it contained certain exceptions that would have contravened legal requirements. Accordingly, he recommended that the award, be made to the next low responsive bidder, American Buildings of Pinellas, Inc. The staff of the Department of Education nevertheless recommended that the low bid be accepted. Commissioner Christian placed the matter before the State Board of Education in a memorandum, dated June 24, 1969, recommending that the award be made to American Buildings unless the low bidder agreed to conform to the plans and specifications. At a subsequent meeting of the board, Christian advised that no such letter had been received and award was made to American Buildings of Pinellas, Inc. for a total sum of $487,329.00. (Testimony of Betts; Petitioner's Exhibits 2,6,10; Respondent's Exhibits 1,2 & 3). On June 24, 1969, Respondent invoiced the State Department of Education for "architectural consultive services for migratory prekindergarten relocatables for 30 working days" during the period of April 20 through June 23, 1969 for total compensation of $1,500.00. He received a check. in this amount from the State Treasurer, dated August 13, 1969, which he endorsed and placed into a business account in his name on August 26, 1969. On the same date, he issued a check in the amount of $1,500.00 to the Southeastern Engineering Company, his employer, which the latter deposited into its general account. By letter from Commissioner Christian, dated November 3, 1969, Respondent was commended for his "coordination and leadership and production of laboratory plans and specifications in the initial prekindergarten units" and requested to continue as an architectural consultant at the rate of $50.00 per day in connection with the Florida Migratory Child Compensatory Program. Respondent did so and at various times during 1970 and 1971 invoiced the State Board of Education for further services in the inspection of additional phases of mobile prekindergarten units. By a memorandum, dated February 25, 1970, from Phillip S. Shaw, Comptroller of the Department of Education to Commissioner Christian, certain problems in connection with the project were pointed out, including the fact that there had been no contract with the Respondent or with James T. Glisson who had made numerous reports and conducted various inspection trips during the course of the project that normally would have been accomplished by departmental employees. Christian responded to this memorandum by his own of March 2, 1970 wherein he stated that arrangements had been made for Respondent to pay Glisson for the latter's work as a consultant and that the Respondent had been hired as a consultant at $50.00 per day rather than paying an architectural fee which would have cost the Department $30,000.00 or more and since most of the ideas of the design of the trailer were on existing programs. He further pointed out that Respondent had been employed on a continuing consultant basis to design the program mobile laboratory facilities of the migrant education section. (Petitioner's Composite Exhibits 2 & 3, Respondent's Exhibit 7). Work order no. 260 of Southeastern Engineering Company, dated May 15, 1969, shows Robert Bussey of St. Petersburg, Florida as the client who authorized work in reference to "mobile migratory kindergarten" to "prepare construction drawings, specifications, and bid documents for State Department of Education." It further contains a listing of draftsmen by name, including Respondent, and hours and dates of time attributed to the work thereunder. The initials "W.H.M." appear on the face of the document. An invoice under Respondent's letterhead, dated July 24, 1969, to American Real Estate Management Company, St.' Petersburg, Florida, referencing Work Order Number 260, reads as follows: Re: Mobile Migratory Kindergarten To invoice you for a partial payment for pro- fessional services rendered in connection with the contract between American Buildings of Pinellas, Inc. and the Florida State Department of Education. AMOUNT DUE $2,500.00 A check of the American Real Estate Management Company, dated July 31, 1969 payable to Respondent in the amount of $2,500.00 in payment of the aforesaid invoice was endorsed by the Respondent to Southeastern Engineering Company. Another check issued by the same firm on October 9, 1969 to Respondent in the amount of $2,000.00 for invoice 575 was also endorsed by Respondent to Southeastern Engineering Company. (Petitioner's Exhibits 7,8 & 9). Respondent testified substantially as follows: I have been a licensed architect in Pinellas County since 1955 and am a member of the American Institute of Architects. In 1969, I was employed as an architect in the firm of Southeastern Engineering Company, St. Petersburg, Florida, at a salary of $300.00 a week. I held 10 percent of the stock in that firm which was given to me by the firm in order to comply with the law. My sole function in that organization was to be responsible for architectural drawings and plans. I had nothing to do with the maintenance of records in the corporation. This was handled solely by my employer, Mr. King, who was an engineer. In the Spring of 1969, Mr. King told me that I was supposed to get together with Jake Glisson at the Florida State Museum in Gainesville in order to prepare working drawings and specifications of mobile trailers for the migrant section of the State Board of Education. King drew up the work order with Bussey in this matter and when I commenced the job, I did not know immediately that the work was for Bussey. I was not hired directly by the State Department of Education but assumed that this was done through King. It was my understanding that the drawings were to be done for the use of the State. I thereafter contacted Glisson who gave me rough drawings for the trailers. I prepared preliminary drawings within a week and took them to the migrant section in Tallahassee where I met with Mr. Culton of the migrant section, and other state employees who made recommendations concerning changes. As a result, I revised the drawings to ensure that they conformed to the needs of the State. I was not concerned with the problem of who paid for the work because I was merely on salary. My drawings for the project were approved by Mr. Betts, but most of my dealings at the Department of Education were with Mr. Culton. I knew that my plans would be let out for bid on the project. Joe Roach, Purchasing Agent of the Department, asked me to review the bids that had been received. I did so, and at the time was unaware that American Buildings of Pinellas County, Inc. was in any way associated with Bussey. The man with that firm whom I later dealt with while inspecting construction of the trailers was Vernon Burgess. It was not until 1974 that I learned from Burgess that Bussey had made a deal with Burgess whereby Burgess got a certain percentage of the contract price and Bussey the remainder. I billed the State for $1,500.00 for architectural consultative services and received that amount by check from the State. I deposited the check in my private business account because that was the practice of my firm when dealing with state or county government matters. However, on the same day, I wrote a check in a similar amount to Southeastern Engineering Company. I invoiced and received from American Real Estate Management the sum of $4,500.00 to prepare the plans and specifications for the project. I endorsed checks in this total amount to Southeastern Engineering. My recommendations to the Department of Education for award of the contract were based on valid reasons for not accepting the low bid. No one to my recollection told me to throw out that bid nor was I part of any scheme. After the contract was awarded, I inspected construction, of the various units for the state and billed the state for my time. I later inspected units which were constructed in successive chases of the project involving contracts awarded to other firms. At no time during my dealings with State officials did I inform anyone that Bussey was paying for the plans and specifications. It was my view that both Bussey and the State were my clients and that the State received the benefit of the plans that I drew without paying for them. Although the original drawings which I submitted to the State did not reflect or make reference to American Real Estate Management Company, they did show Work Order 260 thereon. I did not show that work order to anyone at the state offices and, in fact, did not see the work order myself at any time during the project since such forms were handled by others in my firm. However, I was not trying to hide anything because during the period 1969-1974, all of the purchase orders and the bills to American Real Estate Management remained in the offices of Southeastern Engineering Company. No attempt was ever made to destroy any books or records dealing with this matter. My plans later reflected the name "Motivation Systems, Inc." thereon because Bussey and Glisson formed this firm about 1970. (Testimony of Respondent)
Recommendation That the charge against Respondent Walter H. Melody, be dismissed. DONE and ENTERED this 1st day of October, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Selig I. Goldin, Esquire P.O. Box 1251 Gainesville, Florida 32602 William A. Patterson, Esquire Legal Building, Suite 208 447 3rd Avenue North St. Petersburg, Florida 33701 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF PROFESSIONS DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATIONS FLORIDA STATE BOARD OF ARCHITECTURE IN RE: WALTER H. MELODY, ) CASE NO. 76-249 ) FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER This cause came on to be heard before the Florida State Board of Architecture on 29 October 1976 and each of the five (5) members of the Board having read the Transcript of the Administrative Hearing, read all of the Exhibits and the Recommended Order of the Hearing Officer prior to the Hearing before this Board. The architect, WALTER H. MELODY, appeared through his attorney, William A. Patterson, Esquire. After discussion by the Board members and statements by Wayne F. Betts and counsel for the respective parties, it is thereupon concluded and ordered as follows:
The Issue Whether Petitioner’s application for a certified building contractor’s license should be granted, and whether Respondent relied upon an unadopted rule in formulating its intended decision to deny Petitioner’s application, in violation of section 120.57(1)(e), Florida Statutes (2015).1/
Findings Of Fact Respondent, Construction Industry Licensing Board (Respondent or Board), is charged with administering chapter 489, Part I, Florida Statutes, relating to construction contracting, and issuing licenses to certified building contractors. Petitioner, Tony L. Phillips, applied to the Board for a certified building contractor’s license, pursuant to section 489.111, on March 3, 2015. Petitioner passed the required written examination and his application was scheduled for hearing before the Board on May 14, 2015. Building contractors are licensed to construct commercial buildings, and single-dwelling or multiple-dwelling residential buildings, not exceeding three stories in height. See § 489.105(3)(b), Fla. Stat. Section 489.111(2)(c)2. provides eligibility for licensure as a construction contractor. An applicant is eligible for licensure by examination if he or she has a total of at least four years of active experience as a worker who has learned the trade by serving an apprenticeship as a skilled worker who is able to command the rate of a mechanic in the particular trade or as a foreman who is in charge of a group of workers and usually is responsible to a superintendent or a contractor or his or her equivalent, provided, however, that at least 1 year of active experience shall be as a foreman. (emphasis added). Florida Administrative Code Rule 61G4-15.001(2)(a), provides the qualifications for certified building contractors, in pertinent part, as follows: In the case of applicants for certification in the general or building contractor categories, the phrases ‘active experience’ and ‘proven experience’ as used in Section 489.111(2)(c)1., 2., or 3., F.S., shall be defined to mean construction experience in four or more of the following areas: Foundation/Slabs in excess of twenty thousand (20,000) square feet. Masonry walls. Steel erection. Elevated slabs. Precast concrete structures. Column erection. Formwork for structural reinforced concrete. (emphasis added). In his application, Petitioner listed his experience as a foreman with Jacobs Engineering Group, Inc. (Jacobs), to meet the statutory and rule requirements for active experience in the trade. At all times relevant hereto, Jacobs was a construction engineering inspection consultant for the Florida Department of Transportation (FDOT). Jacobs performed the inspection of various design-build roadway projects undertaken by construction contractors on behalf of FDOT. Petitioner’s application included three specific projects to demonstrate Petitioner’s relevant experience: Wekiva Parkway, John Young Parkway Extension, and Baseline Road. The Wekiva Parkway project consisted of a four-lane highway, three category one bridges, a toll gantry, and equipment enclosure. The general contractor charged with construction of this project was the De Moya Group. Jacobs performed the construction engineering inspection role for FDOT. Jacobs’ role was quality control and inspection. Petitioner indicated in his application that he was the foreman “charged with overseeing the construction of the work on the bridges, roads and related structures.” Jacobs employed Petitioner as a foreman of Jacobs’ employees, who conducted inspections of construction work performed by the De Moya Group. Petitioner’s duties on the Wekiva project were to perform inspections. Petitioner did not perform construction duties, but rather inspected the construction performed to ensure compliance with the applicable FDOT and contractual requirements. While Petitioner’s inspection duties were vital to ensure the soundness of the facilities under construction, he did not perform construction work. The John Young Parkway project consisted of a flyover over State Road 441, including a large steel girder with integral pier box flyover bridge, sound walls, signalization, sidewalks, asphalt, and reinforced earth walls. The general contractor charged with construction of this project was Southland Construction. Jacobs performed the construction engineering inspection role for FDOT. Petitioner was project foreman for Jacobs on the John Young Parkway project. As such, Petitioner was responsible to ensure that the work was performed in accordance with the contract documents. Petitioner did not perform any construction work or supervise the construction workers employed by Southland Construction. As senior roadway inspector on John Young Parkway, Petitioner had the authority to question the work of the construction crew, and redirect work if it was not being performed per the contract documents or FDOT specifications. If necessary, Petitioner, through the chain of command at Jacobs, could stop work on the project in order to conform work to specifications. However, Petitioner did not perform any construction work on the project. The Baseline Road project consisted of small bridges, small animal crossings, noise walls, drainage structures and gravity walls, signalization, curb gutters, and sidewalks. The general contractor charged with construction of this project was C.W. Roberts Contracting. Jacobs performed the construction engineering inspection role for FDOT. On the Baseline Road project, Petitioner supervised the inspection of all animal crossing structures, as well as the relocation and installation of utilities, and the movement of traffic through the construction site. Petitioner admitted that all of the technical qualifications listed in his application were earned as a Jacobs’ employee performing the task of construction engineering inspection on these three projects. All of the experience Petitioner listed in his application was in the execution of projects performed on behalf of FDOT. None of the job descriptions which Petitioner listed in his work experience as road inspector, bridge inspector, utility coordination facilitator, environmental monitoring personnel, and administrator of maintenance of traffic contracts is considered “construction” by the Board. In fact, contracting work on roads, bridges, streets, and highways is exempt from regulation as construction contracting. See § 489.103(1), Fla. Stat. Thus, even the work performed by the FDOT contractors on those three projects was not “construction” subject to regulation by the Board. The single building or enclosed structure of any kind that Petitioner had any involvement with over the four years of work experience offered in his application was a one-story concrete enclosure to house toll-reading equipment. Petitioner did not supply any further information on this structure. It is clear from the record that Petitioner did not perform any of the construction work himself nor was he a foreman on any of the construction crews. All of the work that he performed concerned the inspection of work performed by construction contractors. Petitioner admitted that he has never built, or supervised the construction of, a single, two, or three-story, habitable, commercial, or residential building. Unadopted Rules Petitioner alleges that Respondent relied upon non- rule policy in formulating its decision to deny Petitioner’s application, in violation of section 120.57(1)(e). Section 120.57(1)(e)1. prohibits agencies from basing agency action that determines the substantial interests of a party on an unadopted rule. The denial of Petitioner’s application for a building contractor’s license affects Petitioner’s substantial interests. A “rule” is “an agency statement of general applicability that implements, interprets, or prescribes law or policy.” § 120.52(16), Fla. Stat. Agencies are required to adopt each agency statement defined as a rule by rulemaking procedures set forth in section 120.54. See § 120.54(1)(a), Fla. Stat. Petitioner alleges Respondent maintains three statements which constitute rules, pursuant to section 120.52(16), but which have not been adopted as rules, pursuant to section 120.54, and relied on those statements in formulating its decision to deny Petitioner’s application, in violation of section 120.57(1)(e). First, Petitioner maintains the Board denied his application because, on the jobs he submitted to demonstrate his relative experience, he could not “hire or fire” contractors and did not control the “means and methods” of construction. Because these terms are not used in the controlling statute or rule, Petitioner argues that the Board relied upon statements of general applicability which have not been adopted as rules.2/ During the hearing on Petitioner’s application, two of the seven Board members, Mr. Boyette and Mr. Cathey, questioned Petitioner about whether he had control over the “means and methods” of construction on the projects he listed in his application. Both Board members concluded that, on the projects Petitioner listed as experience relevant to the building contractor’s license, he did not control the “means and methods” of construction. “Means and methods” of construction is a term of art in the construction industry referring to the plans for executing the work on a particular project. The term encompasses scheduling different aspects of a project and directing the work of a construction crew and, sometimes, subcontractors. A construction foreman has the ability to direct a construction crew and subcontractors. Thus, having control of the “means and methods” of construction is integral to the job of a construction foreman. At the hearing on Petitioner’s application, one of the members, Mr. Boyette, questioned whether Petitioner had authority to hire and fire C.W. Roberts, the prime contractor on the Baseline Road project. A construction foreman may have the authority to hire and fire members of a construction crew, depending on the size of the job. The record reflects that Petitioner’s application was denied because he did not meet the requirements for “active experience” in construction, as defined in the rule, not because he was not empowered to hire and fire members of the construction crew. Second, Petitioner contends that the Board refused to accept an affidavit certifying his construction experience, which is contrary to the rule requirements, thus applied an unadopted rule in reaching its decision to deny his application. Rule 61G4-15.001(1)(a) provides that “[a]ctive experience in the category in which the applicant seeks to qualify shall be verified by affidavits prepared or signed by . . . an architect or engineer . . . who is licensed in good standing . . . listing chronologically the active experience in the trade, including the name and address of employers and dates of employment (which may be corroborated by investigation by the Board). Petitioner did not submit an affidavit with his application. Respondent does not contend Petitioner’s application was denied for failure to include the affidavit with his application. At hearing, Petitioner introduced an affidavit from Anthony Caruso, Petitioner’s supervisor at Jacobs. In the affidavit, Mr. Caruso certified that Petitioner “has more than four years proven experience as a foreman” in the following areas of construction work: [f]oundation/slabs in excess of twenty thousand (20,000) square feet, [s]teel erection, [e]levated slabs, [p]recast concrete structures, [c]olumn erection, and [f]ormwork for structural reinforced concrete (six of the seven criteria listed in rule 61G4-15.001). At hearing, Respondent’s expert, Paul Del Vecchio, a certified general contractor and former 12-year member of the Board, testified that the Board does not rely on affidavits to verify an applicant’s active experience. Mr. Del Vecchio related that the Board had been advised it had no statutory authority to require an affidavit and had discontinued accepting affidavits pursuant to the rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order denying Petitioner’s application. DONE AND ENTERED this 10th day of March, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 10th day of March, 2016.
The Issue The issue for consideration at this hearing is whether Respondent's certification as a communications systems specialty contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County Construction Licensing Board, was the county agency responsible for licensing contractors in the construction trades in Pinellas County and for the regulation of the profession of contracting in that county. Respondent, Michael G. Linton held license No. C-5513 as a certified communications systems specialty contractor in Pinellas County. On or about June 14, 1995, Kim and Vincent Carter, tenants at a residence located at 118 7th Street in Belleair Beach, Florida, contacted Respondent to secure his assistance in moving the satellite reception dish which he had initially installed for them to their new residence. On that date, Respondent issued an invoice to the Carters on which he indicated he was to reinstall their satellite system for $300.00. The statement was signed by Respondent and also bears the apparent signature of V.J. Carter. Mr. Linton claims it was Mrs. Carter who signed the statement authorizing the work, however, but she denies it and Mr. Carter claims it was he who signed it. Mr. Carter disconnected the system inside the residence and helped to take down the outside dish. Respondent moved the dish from the Carter's old residence to their new residence where it was to be reinstalled. Respondent did not pull a permit from the City of Belleair Beach to construct the base for the antenna dish. A permit was required. Mr. Linton claims he did not dig the hole for the base into which he poured the cement but that the base hole was dug by Mr. Carter. Mr. Carter denies having done so. Whoever dug the hole, it did not meet code requirements since it was only 20 inches deep and the code requires a base of concrete at least 48 inches deep. The length and breadth of the slab depends on the size of the satellite dish and the length of the pole on which it will be affixed. The Carters deny that they agreed to pull the permit for this work, claiming that since they are not the owners of the property, they cannot do so. This is not so, however, because, under the terms of the Code, (Section 6- 3(a)(1), either the owner of the property or the authorized agent of the owner can pull the permit. If authorized by the owner of the new residence, either the Carters or the contractor may have pulled the permit. Neither did. Respondent claims he was hired by the Carters only to help them move their satellite system. He was to be paid between $300.00 and $350.00, and Mr. Carter was to help. Because Carter and Mr. Moore, the building official, were old friends, Carter was to pull his own permit and that was put on the invoice. The Carters claim this notation was not there when they signed the invoice. Respondent claims he would have charged $150.00 extra to pull the permit. Respondent admits he holds himself out as a communications systems contractor and that he was retained by the Carters to do work related to the move of their satellite system from one residence to another, but only to help Mr. Carter. He admits he knew a permit was required for the construction of the new base and, though he may not have known whether a permit had been pulled before he poured the new base, he did not pull it himself or insure that one had been pulled. He now admits he should not have relied on the Carters' representations that they would take care of it. He also did not insure that the base which was poured conformed to the requirements of the approved engineering for the installation. The city's building official, Mr. Moore, inspected the work site, on two separate occasions. He first found the hole to be too shallow. When he came back to reinspect, the cement had been poured and he could not gauge the depth, finally accepting the certification of the subsequent contractor that the base conformed to specifications. The conforming work was not done by Respondent but by a subsequent contractor hired by the Carters, Satellite Communications and Electronics, Inc. The Carters were billed an additional $250.00 for this follow up work. This included a fee of $150.00 for pulling the required permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order finding Respondent guilty of the offenses alleged, placing his license on probation for six months, and imposing an administrative fine of $250.00. DONE and ENTERED this 12th day of April, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5933 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. None submitted. Respondent's Proposed Findings of Fact. Respondent's counsel did not number the facts urged in that portion of his submittal described as "Respondent's version Of The Facts." Therefore, the four paragraphs in that section will be addressed individually. Accepted. Accepted, but the contractor must not begin work without a permit being issued. Not a proper Finding of Fact but a comment on the state of the evidence. Accepted. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643-5116 Louis Bakkalapulo, Esquire The Wilder Center Suite 404 3000 Gulf to Bay Boulevard Clearwater, Florida 34619
Findings Of Fact On March 9, 1973 Peterson, an architect registered in Florida, submitted a proposal "for preparation of design and construction drawings" for remodeling an existing residence to a new law office (Exhibit P-5). This was assigned on March 13, 1978 by attorney Anderson, who also remitted the required $200 retainer fee. Pertinent to this case, the contract provided for services to be rendered as: "Contract documents for permits and construction to include architectural plans (site floor plan, elevations and sections) and engineered structural and electrical drawings; "fee was $1,000 payable $200 on signing and $800 upon completed contract documents for permits." Any other services were at $20 per hour, including design changes after approval of preliminary drawings. The plans Peterson prepared showed the removal of a load bearing wall, without comment or provision for structural additions required by the demolition of the wall. Although the plans were not sealed, Anderson paid the $800 balance and bids were requested. The one bid (Exhibit R-4) was considerably more than budgeted, therefore the project was delayed. After a time, Anderson got interested in the project again but Peterson was unavailable so another architect was used and the project was completed. Thereafter, Anderson's requested reimbursement from Peterson was refused and this complaint was filed. Two registered Florida architects testified as experts for the Petitioner. Peterson's plans did not meet minimum architectural standards, particularly as to omission of substitute structural members for the removal of the load bearing wall. Although, structural changes could have been added by addendum, plans must be complete prior to obtaining permits and bids, and the acceptance of the full amount of the fee. In mitigation, Respondent agreed that he misinterpreted Anderson's understanding and desires but thought the standard procedure was followed; he indicated that this is the first time he has been in this type of situation. More particularly, Peterson intended to exercise his right to prepare an addendum that would have provided an appropriate structural substitution for the load bearing wall, after the ceiling was opened up; he considered the original plans for the wall as schematic only. He assumed the project was not going forward and the bidding process was merely to get prices.
