The Issue The issues in this case are whether Respondent, Richard Lindley, committed the offenses alleged in a four-count Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on March 20, 2008, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Chs. 455 and 489, Fla. Stat. Respondent, Richard Lindley, is and has been at all times material hereto a certified building contractor in Florida, having been issued license number CB C060555. Mr. Lindley is also a Certified Roofing Contractor, having been issued license number CC C1326286. Both licenses were issued by the Construction Industry Licensing Board (hereinafter referred to as the “Board). At all times material, Mr. Lindley was the primary qualifying agent for HCL, Inc. (hereinafter referred to as “HCL”). HCL has a certificate of authority, QB number 20599. On or about June 8, 2005, Mr. Lindley, doing business as HCL, entered into a written contract (hereinafter referred to as the “Contract”) with Myra Love to re-roof her residence located at 765 Windermere Way, Palm Beach Gardens, Florida 33418 (hereinafter referred to as the “Subject Property”). Pursuant to the Contract, Ms. Love agreed to pay HCL a total of $8,125.00, as follows: $1,625.00 upon signing the Contract; $2,843.75 upon “roof dri in”; $2,843.75 upon “roof load”; and $812.50 upon “final inspection.” Consistent with the Contract, Ms. Love paid HCL $1,625.00 by check dated June 8, 2005, upon entering into the Contract. On June 9, 2005, Mr. Lindley applied for a building permit for the work to be performed pursuant to the Contract. The permit was issued, but expired for lack of final inspection. Ms. Love next paid HCL $2,843.75 by check dated October 20, 2005, upon being informed that the roof had been dried in. Despite having paid for the dry in of the roof, it continued to leak. After making the second payment to HCL in October 2005, no work was performed pursuant to the Contract and all efforts by Ms. Love to contact Mr. Lindley failed. On April 24, 2006, Ms. Love wrote to Mr. Lindley complaining about the condition of her roof and his lack of response to her telephone calls to him. This letter was delivered by certified mail, return receipt. Mr. Lindley did not respond to Ms. Love’s April 24, 2006, letter. No work was performed by Mr. Lindley through October 2006 on the Subject Property, at least a year after work on the Subject Property stopped. Therefore, Ms. Love sent a letter dated October 31, 2006, by certified mail, return receipt, to Mr. Lindley. Ms. Love stated in the letter that “since you abandoned the contract on 6/8/05, and failed to show up on the job, I consider the contract null and void because of your nonperformance. You and your employees are hereby notified to stay off my property.” On November 4, 2006, after informing Mr. Lindley that she considered the Contract null and void, Ms. Love contracted with Gold Coast Roofing to complete the re-roofing of the Subject Property. Ms. Love paid Gold Coast Roofing $14,900.00 for the completion of the re-roofing. Essentially, Gold Coast Roofing, due to the time that had expired since work was abandoned, had to essentially start over on the re-roofing of the Subject Property. The total investigative costs for this matter incurred by the Department, excluding costs associated with any attorney’s time, was $258.56.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Richard Lindley violated the provisions of Section 489.129(1)(j) and (m), Florida Statutes, as alleged in Counts II and IV of the Administrative Complaint; imposing a fine of $2,500.00 and placing Mr. Lindley’s licenses on probation for a period of four years conditioned upon his payment of the fines, restitution and the costs incurred by the Department, and any other conditions determined to be necessary by the Board, for the Count II violation; requiring that Mr. Lindley make restitution in the amount of $4,468.75 to Ms. Love; and requiring that Mr. Lindley pay the costs incurred by the Department in investigating and prosecuting this matter; and Dismissing Counts I and III of the Administrative Complaint. DONE AND ENTERED this 12th day of March, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 12th day of March, 2009. COPIES FURNISHED: Lisa A. Comingore, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Richard H. Lindley Richard H. Lindley, d/b/a HCL, Inc. 9146 Arrowhead Drive Greenacres, Florida 33467-1060 Kyle Christopher, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 issue is whether Petitioner is entitled to credit for the answer given in the General Contractor Examination, Contract Administration, Question No. 3, thus improving his grade and allowing him to pass the examination.
Findings Of Fact Petitioner, a candidate to be licensed as a general contractor in Florida, took the General Contracting Examination on June 29 and 30, 1993. The examination instrument was prepared by the National Assessment Institute through an agreement with Respondent to prepare and deliver the examination to determine minimal competence of candidates as a perquisite to licensure in the field of general contracting in Florida. The examination that was given was constituted of two parts. Part I was Contract Administration. Part II was Project Management. To be a successful candidate one must have scored a minimum grade of 70 on each part. Petitioner received a score of 67 in the Contract Administration part of the examination. Petitioner has challenged the score received on Question No. 3 within that part. If his challenge is successful he will have passed that part and the overall examination. Respondent's Exhibit No. 1 contains the examination question, possible answers, correct answer and solution to the problem. To assist Petitioner and other candidates in preparing for the examination Respondent provided a candidate information booklet. The candidate information booklet explained the subject matter about which the candidates would be examined, the purpose of examination and the method of grading the examination. In addition Petitioner and other candidates were provided a general building and residential building reference list to assist in answering the questions in the examination instrument. Finally, the candidates were reminded that some questions were based upon field experience and knowledge of trade practices within the construction business. Having in mind the preparatory information, Petitioner believes the correct answer to Question No. 3 is (D), whereas the answer called for in the examination instrument is (C). Petitioner places emphasis on the belief that field experience and knowledge of trade practices would have caused the candidate to conclude that (D) was the proper answer. Moreover, Petitioner has placed emphasis on the means the Respondent employs to ascertain the propriety of the examination challenge. Those factors are in turn: Was the item clearly and unambiguously worded? Was enough information presented to allow you to select the correct response? Did approved reference materials support the correct response? Were all current techniques taken into account when the correct response was determined? Did responding correctly to the item require knowledge which was beyond the scope of knowledge that should be expected of the candidate for licensure? With this information as the background Petitioner has also included his drawings within Petitioner's Composite Exhibit No. 1, which Petitioner describes as "what went on in Petitioner's mind after reviewing said examination question", considered in the context of associated examination drawings and specifications provided to assist in the solution and as found in Respondent's Exhibit No. 2. The examination question at issue referred the candidate to the drawings and specifications found in Respondent's Exhibit No. 2. The candidate was then directed to prepare formwork to substitute concrete for concrete masonry in elevator shaft walls depicted in the drawings and specifications. The candidate was told the labor cost per square foot for erecting forms for the "concrete contact surface area". The candidate was reminded of the dimensions of the formed openings for the elevator door. The candidate was told to assume that the form work abutted boxed columns located at the intersections of certain grid lines and to deduct measurements for door openings and to include forms for door jams and headers. With these assumptions in mind the candidate was provided four possible answers as the labor costs to erect the forms for the elevator shaft wall between the finished second and third floor elevations. To arrive at the solution the candidate need only perform mathematical calculations consistent with the instructions. The correct answer is depicted in the solution to Question No. 3 found in Respondent's Exhibit 1. By performing the proper calculation, the correct answer is (C). The question was unambiguous and the solution obvious. Nothing in the question or the pre-examination explanations made from Respondent to Petitioner called for reference to the fire code in arriving at the answer to Question No. Therefore, it was inappropriate for Petitioner to try and calculate the answer by attempting to ascertain the appropriate material for boxing the column associated with the elevator shaft taking into account fire code requirements. Petitioner assumed the necessity to utilize fire retardant materials to encase the boxed column located at the intersection of grid lines D and 3 as the column abutted the formwork that was described in the problem. Placement of fire retardant material around the column was not necessary and contributed to Petitioner's miscalculation of the answer to the question. Moreover, in Petitioner's calculation, contrary to the instructions which said to assume that the form work abutted the boxed column at the intersection of grid lines D and 3, Petitioner made his calculations along the centerline and not as these surfaces abutted. This meant that the lineal footage determination should have been 35 and not 36 as calculated by the Petitioner. Petitioner also calculated by using two headers and two jams pertaining to the doorway on the second floor to the elevator. Only one header was required in that the bottom of the doorway was not an area where concrete was being poured which would require a form to hold the concrete in place while it was being poured. This caused the Petitioner's measurement to be 23 feet instead of the anticipated 19 foot measurement. In summary, it is the attempt to try and develop an answer which takes into account the fire code in boxing the column and the other errors in calculation specifically referred to here that led the Petitioner to obtain the incorrect answer.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which dismisses the Petitioner's challenge to the examination results and upholds the determination that Petitioner did not pass the General Contractor's Licensing Examination given on June 29 and 30, 1993. DONE and ENTERED this 24th day of March, 1994, in Tallahassee, Florida. CHARLES C. ADAMS 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 24th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6616 The following discussion is given concerning the proposed findings of fact: Petitioner's Facts: Paragraphs 1 through 9 are subordinate to facts found. Paragraphs 10 through 57 are rejected as they attempt to justify the Petitioner's choice of answers to Question No. 3 in the examination instrument. Respondent's Facts: Paragraphs 1 through 5 are subordinate to facts found. Paragraph 6 constitutes legal argument. Paragraphs 7 and 8 are subordinate to facts found. COPIES FURNISHED: Thomas A. Centola, Jr. 532 Ponte Vedra Boulevard Ponte Vedra Beach, Florida 32082 Vytas J. Urba, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Hickok, Executive Director Construction Industry Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent is the state agency charged with the duty of regulating general contractors in the State of Florida. An applicant for certification as a general contractor must pass the examination administered by Respondent as a prerequisite to, certification. Section 489.113(1), Florida Statutes. Petitioner sat for the certified general contractor's examination on October 14-15, 1988. Petitioner passed one part of the examination, but he did not pass the other two parts of the examination. Petitioner timely and properly challenged the grading of two examination questions for which he received no credit, to wit: Question Number PM 10 and Question CA 10. Petitioner abandoned any challenge he may have had to other questions. Question PM 10, a multiple choice question, required Petitioner to apply one of the sections of the Standard Building Code to a factual problem. The question required both a correct construction of the provision and a correct application of the provision. Petitioner misconstrued the provision and therefore missed the problem. Respondent gave Petitioner no credit for his answer to Question PM 10 because Petitioner gave the wrong answer to the question. Question CA 10, also a multiple choice question, required Petitioner to correctly construe the question presented and to respond accordingly. This question involved a change order and the payment therefor. In computing the amount that he would charge the owner, Petitioner included charges for the removal of certain materials that the contractor would have to remove in order to perform his contract. Those costs should be allocated to the contractor, not to the owner. Petitioner misconstrued the question and therefore missed the problem. Respondent gave Petitioner no credit for his answer to Question CA 10 because Petitioner gave the wrong answer to the question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional Regulation, enter a final order which finds that Petitioner abandoned his challenges to all questions except Question PM 10 and Question CA 10 and which denies Petitioner's challenges to Question PM 10 and to Question CA 10. It is further recommended that the two questions filed as exhibits in this proceeding be sealed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of August, 1989. CLAUDE B. ARRINGTON 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 11th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1859 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: The proposed findings found in the first full paragraph of Petitioner's proposed recommended order are addressed in paragraphs 1, 2, 3, and 4. The proposed findings found in the second and third full paragraphs of Petitioner's proposed recommended order are addressed, in part, in paragraph 5. The proposed findings are rejected, in part, as being subordinate to the findings made in paragraph 5. The proposed findings found in the fourth full paragraph of Petitioner's proposed recommended order are addressed, in part, in paragraph 7. The proposed findings are rejected, in part, as being subordinate to the findings made in paragraph 7. The proposed findings found in the fifth full paragraph of Petitioner's proposed recommended order are rejected as being recitation of testimony. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: Addressed in paragraph 2 - 3. Addressed in paragraph 4. Addressed in part in paragraph 4. Rejected in part as being unnecessary to the conclusion reached. 4 - 10. Rejected as being recitation of testimony and as being subordinate to the findings made. 11. Rejected as being unnecessary to the conclusion reached. COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Charles L. Neustein, Esquire 801 41st Street - 5th Floor Miami Beach, Florida 33140 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
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
The Issue The issue in this matter is whether Respondent’s proposed Florida Administrative Code Rule 59A-36.001 constitutes an invalid exercise of delegated legislative authority. Before that issue may be reached, however, it is necessary to determine whether Petitioner has standing to challenge the proposed rule.
Findings Of Fact AHCA is the state agency responsible for the licensure of assisted living facilities (“ALFs”) in the State of Florida. See Ch. 429, Part I; and Ch. 408, Part II, Fla. Stat. As part of its responsibilities, AHCA serves as the enforcement arm for the licensed activity and operation of ALFs. See gen., Chs. 408 and 429, Fla. Stat.; Fla. Admin. Code R. 58A-5 and 59A-35. Petitioner is currently licensed by AHCA to operate an ALF in Hilliard, Florida. Accordingly, Petitioner falls under AHCA’s jurisdiction and is required to adhere to all rules promulgated by AHCA, as well as the Department of Elder Affairs, pertaining to ALFs. See §§ 408.802(13) and 429.01(2), Fla. Stat. Section 429.28, Florida Statutes, is the “resident bill of rights” for ALFs. The resident bill of rights provides that no resident of an ALF “shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility.” Section 429.28 enumerates 12 specific rights for ALF residents. In its 2015 legislative session, the Florida Legislature amended section 429.28(3)(a), which states (as amended): [AHCA] shall conduct a survey to determine general compliance with facility standards and compliance with residents’ rights as a prerequisite to initial licensure or licensure renewal. [AHCA] shall adopt rules for uniform standards and criteria that will be used to determine compliance with facility standards and compliance with residents’ rights. Thereafter, AHCA drafted rule 59A-36.001 entitled, “Standards and Criteria for Determining Resident Rights.”4/ AHCA published the proposed rule in Volume 42, No. 50, March 14, 2016, of the Florida Administrative Register. On June 8, 2016, AHCA published a Notice of Change/Withdrawal amending several sections of the proposed rule. AHCA’s stated purpose and effect of rule 59A-36.001 is to “create a new rule chapter regarding residents’ rights in assisted living facilities licensed by the Agency. Section directs the Agency to adopt rules for uniform standards and compliance with residents’ rights.” Rule 59A-36.001 specifically provides, in pertinent part5/: 59A-36.001, Standards and Criteria for Determining Compliance with Facility Standards and Resident Rights DEFINITIONS. In addition to the terms defined in Section 429.02, F.S., and Rule 58A-5.0131, F.A.C., the following definitions are applicable in this rule chapter. “Core Survey Task” means tasks conducted by Agency survey staff that focus on core areas of regulations. “Timely Manner” means as soon as possible, but not to exceed 24 hours of Agency staff having requested materials. Rule 59A-36.001(2) is entitled “SURVEY PROCESS FOR RESIDENT RIGHTS” and provides, in pertinent part: The following core survey tasks shall be utilized during survey activities in order to determine the facility’s compliance with resident rights pursuant to 429.28, F.S. and 58A-5.0182, F.A.C. The surveyor(s) conducts a tour of the facility to determine if the residents’ health, safety, and welfare are maintained. The tour includes observations and assessments of the following: . . . . Thereafter, rule 59A-36.001(2), in subsections 1 and 2, lists approximately 35 “standards and criteria” a surveyor is to use to determine whether the “residents’ health, safety, and welfare” are maintained by the ALF. In addition to the general reference to section 429.28 and Florida Administrative Code Rule 58A- 5.0182, approximately 18 of the enumerated “standards and criteria” refer to section 429.14(6) or a specific provision from chapter 58A-5. Catherine Anne Avery testified on AHCA’s behalf. Ms. Avery is the manager for the Assisted Living Unit at AHCA. She was the lead developer and drafter of rule 59A-36.001. Ms. Avery explained that, as a prerequisite to initial licensure or licensure renewal of ALFs, AHCA is responsible for surveying (inspecting) ALFs to determine compliance with facility standards and residents’ rights. Pursuant to the Legislature’s directive in section 429.28(3)(a), AHCA created rule 59A-36.001 to standardize the survey process for all AHCA surveyors across the state. Ms. Avery drafted the proposed rule to ensure that surveyors use uniform criteria when determining whether an ALF has generally complied with required facility standards and resident care standards and rights. According to Ms. Avery, AHCA created rule 59A-36.001 solely and exclusively to educate AHCA surveyors on how to conduct ALF surveys. Rule 59A-36.001 is not intended to be used by ALFs or providers. Rule 59A-36.001 essentially creates a checklist of the “core” statutory and administrative rule standards. AHCA intends for every surveyor to use the standards and criteria outlined in rule 59A-36.001 during each survey. Ms. Avery relayed that a survey requires a surveyor to tour the ALF facility; observe ALF operations and services; interact with ALF staff and residents; and interview ALF employees and residents. During the survey, the surveyor is attentive for any possible violations of Florida law. If the surveyor finds evidence of a violation, the surveyor is to refer to the pertinent statutory authority and related administrative rules. After reviewing the applicable statutes and rules, if the surveyor determines that the ALF has committed a violation, the surveyor may issue a Statement of Deficiency to the ALF. Ms. Avery testified that each “standard and criteria” listed in rule 59A-36.001 is based on existing statutory and rule authority. Ms. Avery explained that rule 59A-36.001 does not impose any requirements on an ALF or include any criteria that is not already set forth in Florida statutes or other agency rules. Similarly, the proposed rule does not create new standards or criteria with which Petitioner is required to comply. Therefore, because ALFs must comply with the existing statutes and administrative rules listed in rule 59A-36.001, Ms. Avery testified that the proposed rule will not affect Petitioner. Ms. Avery expressed that AHCA will not cite rule 59A-36.001 to impose administrative penalties on Petitioner (or any other ALF). Any deficiency a surveyor might identify during a survey is encompassed within other applicable rules or statutory authority.6/ Accordingly, Petitioner cannot be sanctioned by AHCA under rule 59A-36.001 for failure to comply with “facility standards” or “residents’ rights.” Ms. Avery conceded that rule 59A-36.001 does not record every statute or rule provision pertaining to “facility standards” and “residents’ rights.” She explained that, in compiling one list of uniform standards and criteria, AHCA could not practically include every factor that might impact an ALF resident’s safety and well-being. Ms. Avery did not believe it was possible to delineate every area of concern or condition that affects the “legal rights, benefits, or privileges” of ALF residents. Instead, AHCA fashioned rule 59A-36.001 to reference only the “core survey tasks.” These tasks focus on the core area of regulations that are designed to protect the health, safety, and welfare of ALF residents. In setting down uniform standards into one rule, AHCA wanted to focus its surveyors on those areas that are most important and have the highest impact on residents’ rights. At the final hearing, Petitioner elicited testimony from Ms. Avery that AHCA surveyors may utilize other resources during surveys that are not incorporated into rule 59A-36.001. These resources include the Aspen Regulation Set (“Aspen Reg Set”) and the Assisted Living Resource Manual (“Resource Manual”). These two documents provide a surveyor with lists of AHCA protocols, statutory references, and various investigative forms that offer guidance on how a surveyor is to conduct a survey or gather evidence to assess an ALF’s compliance with governing law. The Aspen Reg Set contains a list of pertinent statutes and administrative rules a surveyor may use to assign deficiencies. The Resource Manual contains an interview worksheet that a surveyor may use while questioning facility staff, residents, or residents’ family members. Ms. Avery explained that rule 59A-36.001 was not designed to directly replace the Aspen Reg Set or the Resource Manual. Instead, all these resources combine to provide a “toolbox” for the surveyor to use to determine compliance. The Aspen Reg Set and the Resource Manual are merely tools the surveyor may employ at his or her discretion. No surveyor is required to use the documents during a survey. In addition, Ms. Avery explained that the statutes and administrative rules cited in the Aspen Reg Set or the Resource Manual consist of the same law that AHCA listed in rule 59A-36.001. Ms. Avery also testified that section 429.28 authorizes AHCA surveyors to refer to recognized “community standards” during ALF surveys. Section 429.28(1)(j) specifically states: Every resident of a facility shall have the right to: * * * (j) Access to adequate and appropriate health care consistent with established and recognized standards within the community. AHCA, however, did not incorporate into rule 59A-36.001 all the various Florida “community standards” that a surveyor may encounter to determine an ALFs’ compliance with residents’ rights. Ms. Avery explained that “community standards” are not codified in statute. In addition, AHCA does not have authority to define “community standards.” Instead, AHCA surveyors consider community standards on a case-by-case basis depending upon facts and circumstances that are particular to the specific community. Ms. Avery also addressed a specific provision AHCA included in rule 59A-36.001 regarding the time period in which an ALF must produce documents following a surveyor’s request. Rule 59A-36.001(2)(4) states that, “The facility must provide agency staff with requested documents in a timely manner and allow the agency staff to obtain copies.” (Emphasis added). Rule 59A-36.001(1)(b) defines “timely manner” to mean “as soon as possible, but not to exceed 24 hours of Agency staff having requested materials.” Ms. Avery explained that the time period for an ALF to produce documents is already addressed in existing Florida law. Specifically, rule 58A-5.024 provides that an ALF “must maintain required records in a manner that makes such records readily available at the licensee’s physical address for review by a legally authorized entity . . . ‘readily available’ means the ability to immediately produce documents, records, or other such data, either in electronic or paper format, upon request.” (Emphasis added). AHCA decided to use “24 hours” in rule 59A- 36.001(1)(b) instead of the term “immediately” as a way to provide the surveyor a workable frame of reference when requesting documents from ALFs. Instead of demanding that an ALF produce documents “immediately,” the surveyor will have the discretion to grant an ALF a more practical time period to produce the records (i.e., within 24 hours). Essentially, AHCA intended surveyors to use the 24-hour time period as a rule of thumb. Ms. Avery opined that Petitioner will not be affected by a surveyor’s use of the term “timely manner” in rule 59A- 36.001(1)(b). AHCA can sanction an ALF for failing to produce records “immediately” under existing statutes and administrative rules. See, e.g., §§ 408.811(3), 429.14, and 429.34(2), Fla. Stat. AHCA will not cite to rule 59A-36.001 for an ALF’s failure to produce records in a “timely manner.” Finally, Ms. Avery pointed out that AHCA does not have rulemaking authority regarding facility standards or residents’ rights. Instead, the Department of Elder Affairs has sole authority under Florida law to promulgate rules for residents’ rights in chapter 429. See § 429.41, Fla. Stat. Facility standards for ALFs are set forth in chapter 429, part I, and chapter 58A-5. Therefore, AHCA cannot, and did not, include any “uniform standards and criteria” in rule 59A-36.001 that expand, interpret, reduce, or otherwise modify the rules for facility standards and residents’ rights promulgated by the Department of Elder Affairs. Petitioner’s owner and executive director, Douglas Adkins, testified on Petitioner’s behalf. Mr. Adkins has administered Petitioner for over 29 years. Petitioner asserts that rule 59A-36.001 is vague in that the proposed rule lacks adequate specificity. Because of its vagueness, Petitioner argues that rule 59A-36.001 fails to establish adequate standards for AHCA decisions and provides AHCA surveyors too much discretion during the survey process. Mr. Adkins expressed that the “uniform standards and criteria” listed in rule 59A-36.001 do not contain sufficient detail to fairly and reasonably inform ALFs how AHCA surveyors will determine compliance with applicable statutes and rules. Mr. Adkins expounded that AHCA must enunciate more clearly what regulations surveyors might cite to sanction ALFs, and how they will determine compliance. Mr. Adkins explained that Petitioner initiated this rule challenge to ensure that it is fully aware of AHCA’s expectations prior to its licensure renewal surveys. To make sure that its ALF services comply with all legal requirements, Petitioner seeks a comprehensive understanding of how AHCA surveyors will determine compliance with applicable facility standards and residents’ rights. Mr. Adkins testified that he keenly reviews all materials and resources to which AHCA surveyors may refer during their surveys. He also studies AHCA postings and informational releases to ascertain pertinent Florida law. Having AHCA set forth in rule 59A-36.001 the exact standards its surveyors will use to determine ALF compliance will greatly assist him achieve his goal of administrating his ALF in full compliance with Florida statutes and administrative rules, as well as be fully prepared for Petitioner’s licensure renewal surveys. Despite his claim, however, Mr. Adkins did not point to any distinct example (or prospective AHCA survey) where an AHCA surveyor could cite rule 59A-36.001 as a basis for a legal deficiency or violation while surveying his facility. Neither did Mr. Adkins identify any standard or criteria set forth in rule 59A-36.001 with which Petitioner might fail to comply. Further, Mr. Adkins did not present evidence of any imminent or pending adverse administrative action Petitioner might or will confront based on AHCA’s promulgation of rule 59A-36.001. The competent substantial evidence presented at the final hearing fails to prove that Petitioner is substantially affected by rule 59A-36.001. Petitioner did not show that the proposed rule will cause a real or immediate injury in fact. In addition, Petitioner failed to establish, by a preponderance of the evidence in the record, a factual basis that the proposed rule is vague. Conversely, AHCA demonstrated that rule 59A- 36.001 is not an invalid exercise of delegated legislative authority as to Petitioner’s objection that the proposed rule is vague.
