Findings Of Fact Prior to July, 1972, Athan was a registered architect in the State of Florida after passing the Board's examination. In 1972 Athan failed to pay his renewal fee for the year 1973. Nathan tendered his fee for 1972 in June, 1973; however, his application and check were returned to him by the Board because Athan did not include a $10.00 penalty fee. No further action was taken by the Board until June, 1976, when after an inquiry by Athan as to his status, the Board sent Athan a notice of revocation dated May 27, 1976. In response to this notice, Athan requested additional information from the Board. The Board's letters of June 9, 1976, and August 16, 1976, advised Athan that, if he desired to be reinstated without examination, he would have to appear before the Board. Athan appeared before the Board on two occasions and the Board denied his request for reinstatement. The basis for this denial was never stated formerly to Athan and is not developed in the file introduced into evidence. Athan testified and the file reflects that he was never noticed of a hearing to be held on the issue of the revocation of his license and that no formal action of revocation was ever taken by the Board prior to May 27, 1976. The parties stipulated that Athan meets all the qualifications for licensure required by the statutes prior to taking the examination for licensure. The basis for the Board's action in denying Athan's request for reinstatement are contained in the representations and arguments of Counsel for the Board as set forth in the introductory portion of this order and are hereby incorporated into the findings of fact. Based upon the stipulation concerning Athan's qualifications, the only basis for denial of Athan's application for reinstatement are those stated above. Between 1972 and 1974 Athan designed structures for his own development company. During this period, he developed, designed and supervised the construction of a forty-unit apartment house and six office buildings. Considering that Athan was totally responsible for design and construction of these projects, this work compares favorably with his work output in the preceding four years during which he designed thirteen shopping centers, 3,000 apartment units, a four-story office building, two hospitals, and twelve to fifteen private homes. Following his eighteen month vacation, Athan worked for a licensed architectural firm in the State of Florida for a short while during which he was involved in all phases of architecture. This firm found that Athan's work was totally satisfactory in all respects.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the license of Demetrios James Athan be reinstated by the Florida State Board of Architecture. DONE and ORDERED this 1st day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: James C. Rinaman, Jr., Esquire Southeast First Bank Building Post Office Box 447 Jacksonville, Florida 32201 Mr. Demetrios James Athan Post Office Box 174 Cocoa Beach, Florida 32931
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensing of contractors in Florida and regulating the practice of contracting of all types. Specifically, the Petitioner is responsible for enforcing law which prohibits unlicensed persons from engaging in the business of contracting, or advertising themselves or business organizations as available to engage in contracting, without proper licensure. The Respondent is a citizen of the State of Florida, who has embarked on a business of representing owners who desire to construct residences, acting as the agent of those owners in arranging for materials, labor, subcontractors, and the financing of construction. Upon the decision by the owner to construct a residence, the Respondent engages in drafting plans, to some extent, arranging for subcontractors, overseeing the details of the work and any changes or alterations in the work and plans as the project proceeds. The owner in this arrangement does not obtain workers' compensation coverage for the Respondent, as would be the case if the Respondent was an employee of the owner, nor does the owner withhold F.I.C.A. taxes from monies due the Respondent for his services. The Respondent is not licensed as a contractor in the State of Florida. On May 11, 1995, the Respondent signed a contract (hereinafter the "Kassiris Contract") with owner Gus Kassiris, to oversee the erection and construction of a new residence for Mr. Kassiris. The Respondent was to perform the following duties, pursuant to the Kassiris Contract: to make recommendations as to which subcontractor to hire; to inspect progress and review payments; consultations and solutions on construc- tion project; to engage in manpower tracking and coor- dination of resources; monitoring of contract compliance; to provide punch list services; and to engage in the preparation and de- fense of change orders, as well as cost accounting. The "punch list services" mean that the Respondent was to engage in insuring that no work was left undone or done incorrectly at the end of the project. The Respondent admitted that he conducted all inspections on the project and reviewed all requisitions for payment from the subcontractors. The amount he charged for his services was roughly equivalent to the amount a licensed contractor would charge for similar services. The Kassiris Contract did not meet the conditions for a homeowner's exemption, found in Section 489.103(7), Florida Statutes. Specifically, the Kassiris Contract did not provide that the Respondent would work under the supervision of the homeowner. In fact, the Kassiris Contract provided that if the homeowner wanted changes made in the specifications, he could request a change order. The Kassiris Contract also did not provide that the homeowner would deduct F.I.C.A. and withholding taxes from the Respondent's fees or wages, as required in the homeowner's exemption standards. There was no provision requiring that the homeowner provide workers' compensation, as required by the statute, in order to make out the elements of the homeowner's exemption (from the requirement of having a contractor's license). The conditions for exemption from licensure were also not met in the implementation of the Kassiris Contract. Specifically, the homeowner did not act as his own contractor and provide all of the material supervision himself. Although he denies it, in fact, the Respondent negotiated the contracts with the subcontractors and, during the course of performance of the Kassiris Contract, the Respondent approved plan changes for the project, without the involvement or consultation of the owner. The Respondent acted in the capacity of a contractor in the implementation of the contract by overseeing most details of construction of the residence. He performed the on-site inspections, dealt with subcontractors, approved the manner in which work was being performed, approved payment of subcontractors, and, in general, closely managed all details of the contracting effort. Practically, the only involvement the owner had, other than being present on the site frequently, was that the owner actually wrote the checks to pay the subcontractors and delivered them to the Respondent, who, in turn, delivered them to the subcontractors. The owner obtained the building permit at the commencement of the project. The Respondent advertised in the Citrus County Chronicle, a newspaper of general circulation, on or about June 25, 1995, that he offered services for hire as a construction consultant and for project management. On or about June 27, 1995, he entered into a contract with Paul and Valerie Stamper (hereinafter the "Stamper Contract"). The Respondent was thus charged with overseeing the erection and construction of a residence located at Lot 15 of Laurel Oak Estates Subdivision in Citrus County, Florida. He acted in the capacity of a contractor in the negotiation and formulation of this contract. According to the Stamper Contract, the Respondent's responsibilities were to include the following: make recommendations as to which subcon- tractor to hire; conduct progress inspections and payment reviews; consult concerning construction problems and arrive at solutions; engage in manpower and tracking and coor- dination of resources; monitor contract compliance; provide "punch list" services; prepare and defend any change orders; engage in cost accounting. The terms of the Stamper Contract indicate that the residence to be constructed was to be purveyed to the owner, rather than a case of the owner being the contractor actually creating the product. In order for the above- referenced exemption to apply, the homeowner must be the party functioning as a contractor on his own behalf. It is noteworthy in this regard that the Stampers gave the Respondent a $3,000.00 deposit. The Stampers later decided that they did not wish to proceed with the contract and requested return of that deposit. The Respondent refused to return the deposit money, although acknowledging that the Stamper Contract was no longer in effect. In his letter to the Stampers, responding to their request for return of the deposit, he proposed, instead, that they continue to proceed with the contract and the construction of the residence, which the Stampers no longer wished to own and occupy, in order that they could sell it. The intention to construct a residence for sale to another party directly belies the possibility that the homeowner can be his own contractor, constructing a residence for his own use in compliance with the homeowner-exemption law. It shows an intention to engage in contracting by the Respondent. The existence of facts supporting this exemption is also belied because the Respondent, in his contract with the Stampers, did not contract to have F.I.C.A. or income taxes withheld from any paychecks due him from the Stampers, nor did the Stampers contract to provide workers' compensation coverage for the Respondent. The contract also did not provide that the owners, the Stampers, would act as their own contractors and provide all material supervision themselves. In fact, the Respondent was to provide supervision. The Petitioner is responsible for enforcing the prohibition against unlicensed contracting in order to protect the public. There are frequent problems with unlicensed contractors in Florida in terms of their competence to provide quality work and their willingness to do so, as well as outright fraud and harm to the public. The contracts which unlicensed contractors enter into are illegal and unenforceable. Homeowners who contract with unlicensed contractors are not eligible for recovery under the Construction Industry Licensing Recovery Fund. On July 2, 1995, the Respondent again advertised in the Citrus County Chronicle, advertising himself as available to manage the construction of residences. Based upon this notice and other information, the Petitioner issued a Notice to Cease and Desist to the Respondent, ordering him to cease and desist the unlicensed practice of contracting. The Respondent contends that he is not a contractor and that he is, instead, a project manager or consultant and, therefore, not governed by the statutory provision authorizing the Notice to Cease and Desist.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered imposing an administrative fine in the amount of $5,000.00 against the Respondent. DONE AND ENTERED this 23rd day of February, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, 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 23rd day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-4534 Petitioner's Proposed Findings of Fact 1-9. Accepted. 10. Rejected, as constituting a conclusion of law. 11-14. Accepted. 15. Rejected, as being irrelevant. 16-17. Accepted. 18. Accepted, except for the next to the last sentence, which constitutes a conclusion of law. 19-20. Accepted. 21. Rejected, as constituting a conclusion of law. 22-31. Accepted. Respondent's Proposed Findings of Fact 1-2. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the unrefuted evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not in accordance with the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as constituting a conclusion of law, but to the extent it might be a proposed finding of fact, as not in accord with unrefuted evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not representative of the unrefuted evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter and as not itself being dispositive of material issues. Rejected, as contrary to the greater weight of the evidence and as not being materially dispositive. Rejected, as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter and as, in part, being a conclusion of law and not a proposed finding of fact. 10-12. Rejected, as constituting a conclusion of law. COPIES FURNISHED: Donna Bass, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750 Mr. Mark P. Stanish 6041 Town Court Springhill, FL 34606 Richard Hickok, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, FL 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issues to be resolved in this proceeding concern whether the Respondents committed the offenses alleged in the Administrative Complaint, which involve the Respondents allegedly practicing architecture or providing architectural services without being duly-registered or certified; using the title "architect" or words to that effect when not holding a valid license and Jimmy Lee Wallace presenting another's architecture license as one's own.
Findings Of Fact The Petitioner is an agency of the State of Florida which regulates the practice of architecture and entry into the practice through licensure. The Petitioner agency, the Department of Business and Professional Regulation (Department) has jurisdiction over the unlicensed practice of architecture in accordance with Section 455.228(1) and 481.223(1)(a), Florida Statutes (2003). The Respondent, Jimmy Lee Wallace, is president and sole stockholder of the Respondent Onyx Design, Inc. That business was incorporated on or about April 9, 2000. It has never employed a Florida licensed architect. Mr. Wallace and Onyx Design, Inc., were not registered or certified to engage in a practice of architecture, as envisioned by Chapter 481, Florida Statutes. Mr. Wallace graduated from Texas State Technical College with an AA degree in drafting and design and, in 1994, obtained a four-year Bachelor of Science degree in architecture from Paul Quinn College in Dallas, Texas. Paul Quinn College was not an accredited school of architecture. Upon completion of his degree, Mr. Wallace was employed with the architectural firm of Rosier Jones Architectural for almost two years as a draftsman. He was employed also with the architectural firm of Fleischman, Garcia Architects for almost a year as a draftsman. Mr. Wallace returned to Tallahassee, Florida, to continue his education in architecture with hopes of becoming a Florida licensed architect. He was aware that he had to become licensed in order to enter into contracts for architectural services and to display an architectural license number. The Respondent, Mr. Wallace, entered into an agreement with Nick Taylor on February 4, 2003. It was an agreement called "Contract for Architectural Services." The Respondent agreed with Mr. Taylor that the Respondent would provide architectural services on commercial property known as the Atlantis Bar and Grill located at 1588 Waldo Palmer Lane in Tallahassee, Florida. The Respondent drafted the agreement. That agreement specifically states that the Respondent will "develop CAD drawings depicting client defined office building, Onyx will provide plumbing, mechanical, electrical and the design of the interior building. There will be three phases (1) Schematic Design, (2) Design Development, (3) Construction Documents." The structure involved in this agreement and project, located at 1588 Waldo Palmer Lane in Tallahassee, is a restaurant, which is a commercial property intended for public use. Mr. Taylor understood that the Respondent would sign and seal the construction documents and drawings. The Respondent never told Mr. Taylor that anyone else would have to sign and seal the drawings and construction documents. Such documents require the seal of a licensed architect. In accordance with the contractual terms, the Respondents were to receive $3,550.00 in cash and the balance of $430.00, of the fee owed by Mr. Taylor, would be used by the Respondents as credit at the client, Mr. Taylor's restaurant. The Respondents received $3,550.00 from Knights Entertainment, Inc., Mr. Taylor's business, for providing services under the "Contract for Architectural Services." The Respondent prepared the drawings under that contract. The drawings consisted of five sheets, with Onyx Design, Inc., appearing on the title block of each page. There were no other design professionals appearing on the pages of the drawings. The drawings were dated February 4, 2003, and the initials "JLW" appear on each page. Those initials represent the Respondent's name, Jimmy Lee Wallace. The Respondent prepared all of the drawings except the portions that are handwritten. The Respondent represented to Mr. Taylor that he was a licensed architect and provided Mr. Taylor with a business card which contained the name of Jimmy Lee Wallace of Onyx Designs, Inc. That business card offers architectural services for both commercial and residential construction and contains the notation "Licensed #FLAR0014186." That is the architectural license number of Roberto Lence (Lence). The Respondent did not have the permission of Mr. Lence to display his license number on the business card of the Respondent's business. Mr. Lence's name does not appear anywhere on the business card. Mr. Lence was never an employee of Onyx Design, Inc., or Jimmy Lee Wallace nor had he any type of business relationship with the company, either as a stockholder or an officer. The Respondent never told Mr. Taylor that the license number on the business card belonged to someone else. Mr. Taylor thought that the Respondent was a licensed architect based upon the representation on his business card. Any person who worked in an architectural firm, as did Mr. Wallace, would know that only architects can follow their names with a license number. Mr. Lence feels the Respondent betrayed him by using his license number without his permission, especially since Mr. Lence had acted as a mentor for Mr. Wallace in the past. The plans prepared by the Respondent under the referenced contract require the seal of a Florida licensed architect in order for a permit from the City of Tallahassee building department to be obtained. The plans submitted by the Respondent to Mr. Taylor did not contain a licensed architect seal. Mr. Taylor did not even submit the plans for permitting, based upon advice from his contractor to the effect that the plans were incomplete. Mr. Taylor contacted Mr. Wallace and gave him several options to correct the situation, including making a refund of fees paid, providing the computer files to have someone else complete the plans or that the Respondent complete the plans himself. The Respondent rejected all such offers. The incomplete nature of the plans prompted Mr. Taylor to look up the Respondent's license number or purported license depicted on his business card. He thus discovered that the Respondent was not actually a licensed architect. He then filed a complaint with the Tallahassee Police Department and the Respondent was charged with grand theft. He entered a plea to a lesser charge in that proceeding. On or about October 18, 2002, the Respondent entered into an agreement titled "Contract for Architectural Services" with Kenneth Barber. By this agreement, the Respondent was to provide architectural services on commercial property intended for public use at 650 Brevard Street, Tallahassee, Florida. The structure located at that address is a commercial office building. The Respondent drafted the above-referenced agreement. In the agreement, the Respondent agreed to provide drawings of the interior renovations, along with drawings of the interior prior to the renovations. In accordance with the terms of the contract, the Respondents were to receive $2,432.56 as a fee for architectural services. The Respondents were paid more than that amount for providing services under the above- referenced contract. The agreement specifically states that the Respondent will "draw the existing structure located at 650 Brevard Street, Tallahassee, Florida, which is located in Frenchtown." The agreement then states: "Said drawings will include CADD drawings showing the new and old structure of the building." The Respondent prepared the drawings for the above- referenced project. Onyx Design, Inc.'s, name appears on the title block of each page of those drawings and there are no other design professionals named within the title blocks on those pages. The Respondent provided the drafting for sheets one through nine of those plans. They were then sent to Mr. Lence and he made changes to them. Mr. Lence is a Florida licensed architect, first becoming licensed in 1992. On May 12, 2003, Mr. Lence signed and sealed the drawings as a Florida licensed architect. He signed and sealed the drawings even though he had never met with Mr. Barber, visited the jobsite or had any contractual relationship with Mr. Barber, the owner of the property. The Respondent paid Mr. Lence $250.00 for the services he provided on the project, even though the Respondent received over $2,400.00. Mr. Lence only charged the Respondent $250.00, which is not his normal rate, because he was trying to help the Respondent in a mentor type of role. Mr. Lence was not aware of that the Respondent had a written contract with Mr. Barber and was not involved in the negotiations. The Respondent told Mr. Lence that he was doing work for licensed contractors on "design-build" projects. During the course of providing services under this contract, the Respondent provided Mr. Barber with a business card which contained the names of Jimmy L. Wallace of Onyx Design, Inc. That business card offers architectural services for commercial and residential projects. The business card contains "License #FLAR0014186." That is the architectural license number of Mr. Lence. Mr. Lence had not given his permission to the Respondent to display his license number on the card given to Mr. Barber. In fact, Mr. Lence's name appears nowhere on that business card. The Respondent never told Mr. Barber that the license number displayed on the card did not belong to him and thus, Mr. Barber thought the Respondent was a licensed architect. Mr. Barber discovered that the Respondent was not a licensed architect after he entered into the contract with the Respondent. If he had known when he contracted with the Respondent that someone else would be required to sign and seal the plans, his decision to enter into such an agreement with the Respondent might have been different. The project was delayed because the Respondent did not provide correct drawings and Mr. Barber requested the automated copies so that he could hire someone else. The Respondent refused to provide him the copies of the drawings unless Mr. Barber signed a release of liability. Mr. Barber was required to hire another licensed architect to correct the plans at a cost of $2,500.00. The Respondent also rendered into an oral contract with Henry Hunter, a Tallahassee attorney. That contract called for the Respondent to provide drawings for a commercial property intended for public use, located at 2011 South Adams Street, Tallahassee, Florida. The agreement required the Respondent to provide the drawings so Mr. Hunter could get a building permit. If Mr. Hunter had known that the Respondent would have to get another person, a licensed architect, to sign and seal the drawings, he probably would not have entered into the contract with Mr. Wallace. Mr. Hunter was led to believe that the Respondent was a licensed architect. During the course of providing services under the above contract to Mr. Hunter, the Respondent provided Mr. Hunter with a business card which contained the name of Jimmy L. Wallace of Onyx Designs, Inc. The same facts and circumstances were depicted on that business card furnished to Mr. Hunter as were depicted and represented with regard to the Barber and Taylor transactions involving the Respondent. The Respondent never told Mr. Hunter that the license number displayed on the business card was not his license number and did not belong to him. The Respondent prepared the drawings for the above- referenced project. The plans consisted of eight sheets and each sheet of plans contained Onyx Design, Inc., named within the title block along with a notation "Drawn by JLW" which represents the name of Jimmy Lee Wallace, the Respondent. The drawings do not contain the name of any other design professionals. Other than handwritten notes and areas that were "bubbled in," the Respondent prepared the drawings on each sheet. Mr. Lence signed and sealed the drawings on January 9, 2003, without meeting the client in person or visiting the jobsite. On or about February 18, 2003, the Respondent submitted an invoice to Mr. Hunter totaling $25,660.00 for architectural services provided. The invoice specifically sets forth 25 hours for a registered architect and the note states the invoice has been updated to "break-out" architectural service fees. Mr. Hunter thought the Respondent was the "Registered Architect" referenced in the invoice because he was the only one he dealt with regarding this project. The invoice also states that 35 hours were spent by the principal on the project, who is the Respondent. Mr. Lence did not assist with the preparation of the invoice nor did he have any knowledge that the Respondent was providing the invoice to Mr. Hunter. The Respondent told Mr. Lence that this was a design- build project, that the Respondent was doing work for licensed contractors, and that there was not an individual client. If Mr. Lence had known that the Respondent was entering into contracts with individual clients, he would have treated the project differently. The Respondent was paid $3,800.00 for services he provided on the Hunter project. Mr. Lence received nothing. On or about April 4, 2003, the Respondent recorded a claim of lien for "furnished labor, services, or material consisting of architectural drawings and services" on the Hunter property in the amount of $21,860.00. The fees being charged by the Respondent on this project are excessive. The fact of the Respondent filing the lien delayed a loan that Mr. Hunter was attempting to obtain involving his children's education. Mr. Lence was not aware that the Respondent had filed a claim of lien for the architectural drawings. The Respondent entered into a contract with Roivernon Adams and Craig Taylor on October 17, 2002. That contract required the Respondent to provide drawings for a new barber shop. A barber shop is commercial property accessible to the public. In accordance with the terms of that contract, the Respondents were to receive $1,760.00 as a fee for architectural services. The Respondent prepared the drawings for Mr. Adams and Mr. Taylor so they could obtain financing for the project. The Respondents received $1,300.00 for the services he provided under this agreement with Mr. Adams and Mr. Taylor.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a final order be entered imposing an administrative fine of $20,000.00 against the Respondents, Jimmy Lee Wallace and Onyx Design, Inc., payable in the manner provided by law. DONE AND ENTERED this 7th day of July, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 7th day of July, 2004. COPIES FURNISHED: David K. Minacci, Esquire Smith, Thompson, Shaw & Manausa, P.A. 2075 Centre Pointe Boulevard Tallahassee, Florida 32308-4893 Phelicia D. Stiell, Esquire The Stiell Law Firm 1331 East Lafayette Street, Suite E Tallahassee, Florida 32301 Juanita Chastain, Executive Director Architecture and Interior Design Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
