The Issue Whether Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this complaint, the Respondent, Joseph Marcelin, was a certified residential contractor, license number CR C028352. Respondent’s place of business and residence are in Dade County, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed contractors. On May 14, 1988, the Construction Industry Licensing Board entered a final order approving a settlement stipulation regarding Case no. 74860 against this Respondent. This final order directed Respondent to adhere to and abide by all of the terms and conditions of the stipulation. The stipulation required the Respondent to not violate the provisions in Chapters 455 and 489, Florida Statutes, in the future; required Respondent to honor a settlement in a civil matter; required Respondent to pay a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and required Respondent to affirmatively demonstrate compliance with the stipulation in order to have his license reinstated. A second final order entered by the Board on May 14, 1988, approved a settlement stipulation regarding Case no. 77499. This final order also directed Respondent to comply with the stipulation applicable to that case. In Case no. 77499, the stipulation required Respondent to abide by a civil settlement; imposed a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and placed the burden on Respondent to demonstrate he had met the terms of the stipulation. As to both cases referenced above, Respondent admitted the allegations of the administrative complaints which, in pertinent part, claimed Respondent had assisted an unlicensed person or entity to perform contracting services thereby aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes. On April 2, 1993, Respondent executed a certification change of status form which was submitted to the Department. Such form was completed for the purpose of qualifying as an individual for licensure and sought to reinstate a delinquent license or change from inactive to active. In the course of completing the change of status form Respondent was required to answer a series of questions by checking either the “yes” or “no” column. In response to the question as to whether Respondent had “been charged with or convicted of acting as a contractor without a license, or if licensed as a contractor in this state or any other state, had a disciplinary action (including probation, fine or reprimand) against such license by a state, county or municipality?,” he answered “no.” Such answer was false. Further such answer was made under with the following affirmation: I affirm that these statements are true and correct and I recognize that providing false information may result in a FINE, SUSPENSION, OR REVOCATION of my contractor’s license. [Emphasis in original.] Thereafter, the Department notified the Respondent that his license would not be issued as he had failed to demonstrate satisfaction of a civil judgment and had not submitted an explanation of the disciplinary action from 1988. Respondent eventually resolved issues of licensure with the Department and, on September 15, 1993, was authorized to practice contracting. Prior to his license being reinstated, Respondent performed the following: on April 7, 1993, Respondent obtained a building permit for construction work at the home of Eduardo Bovea. This permit, no. 93181501, indicated Respondent as the contractor of record for the project. On the permit application Respondent represented himself as the licensed building contractor for the Bovea project to the Metropolitan Dade County building and zoning department. Respondent did not have a contract with Bovea for the construction work to be performed on the Bovea home. In fact, the contract was between Bovea and Lou Greene Construction. The Boveas paid monies to Rodney Salnave, who claimed to be a representative for Lou Greene Construction. Rodney Salnave was not Respondent’s employee, and was not licensed as a contractor. The Respondent did not talk to the Boveas regarding the contract, the scope of the work to be done, or the contract price for the work. All discussions regarding the work at their home (and payments for same) were between Rodney Salnave and the Boveas. The permit for the Bovea project represented the amount of the work to be $2,000.00. In fact, the contract price for the work was $4,500.00. Respondent misrepresented the value of the work for the Bovea project. As of September 26, 1993, Respondent admitted he was involved with seventeen contracting jobs. Just eleven days after having his license reinstated, and while being employed in a full-time (8:00 a.m. to 5:00 p.m.) job with Dade County, Respondent had contracting responsibility for seventeen jobs. In reality, Respondent had made a deal with an unlicensed person, Denis Joseph, to pull permits for him. The jobs were for persons who, in some instances, Respondent had never met. For example, Mr. Joseph pulled a permit for work to be performed on a home owned by Ed Davis. The contract for the work was between Mr. Davis and a Mr. Sutton, an unlicensed contractor, but with the approval of Respondent, Mr. Joseph obtained a permit for the Davis job. A second job was for Bertha Joseph. In this instance, Mr. Joseph completed the permit application which Respondent signed thereby allowing Mr. Joseph to obtain the permit for the project. By signing the permit, Respondent represented himself to be the contractor for the job. In truth, the homeowner had contracted with Denis Joseph for the work to be done, but the project was completed by Emanuel Gideon, an unlicensed contractor. Respondent admitted receiving payments from Denis Joseph. Respondent admitted he was not actively involved with the Bertha Joseph project. In September, 1993, Eric Wardle, an investigator with the Dade County building and zoning department, interviewed Respondent regarding claims that he was obtaining permits for unlicensed contractors. According to Mr. Wardle, Respondent admitted he pulled permits for unlicensed contractors after Hurricane Andrew because they were trying to make a living. At hearing Respondent disputed the accuracy of Mr. Wardle’s investigation but admitted he would have told him “anything just for him to get away from me.” Respondent’s explanation at hearing was not persuasive.
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 revoking Respondent’s contractor license and imposing an administrative fine in the amount of $8,500.00. DONE AND ENTERED this 16th day of May, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A. 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146 Joseph Marcelin 16561 Southwest 144th Court Miami, Florida 33177 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997. Rodney Hurst, Executive Director Department of Business and Professional Regulation/CILB 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant hereto, Respondent, Roger S. Williams, held registered building contractor license number RB0026339 issued by Petitioner, Department of Professional Regulation, Construction Industry Licensing board, authorizing him to perform contracting under his individual name. Respondent, Frederick S. Schreiner, held certified general contractor's license numbers CG C004811 and CG CA04811 also issued by Petitioner authorizing him to perform contracting under his individual name and under Cape Development Corporation. Williams served as president of Architectural Builders, Inc. (ABI), a development firm located in Palm Bay, Florida. Schreiner was engaged in the contracting business generally in the Brevard County, Florida area. He has done construction work for ABI and Williams for the past eight or nine years. ABI held no licenses from either the state or local governments. On October 31, 1979, ABI entered into a construction contract with Jack and Stella Oleksy to construct a home at 842 South Becker Street, Palm Bay, Florida. The contract was approved by R. S. Williams as president of ABI. At a later undisclosed date, Williams attempted to pull a City of Palm Bay building permit on behalf of ABI. Whether the City gave formal or informal approval at that point is not clear; in any event the construction of the home began shortly thereafter. Several weeks later the City's chief building official told Williams that because he did not have local competency with the City, he could not pull a permit for a job. Williams was also advised that a recent change in state law required ABI to qualify to do business if ABI intended to construct homes within the City. When told that Frederick Schreiner would be constructing the home for ABI and that Schreiner held an appropriate license, the City official told Williams to have a construction contract executed between ABI and Schreiner to build the home. Thereafter, Schreiner pulled a permit for the job and posted it on the building site. He also gave the City a contract executed by he and ABI and which was dated November 29, 1979. During the course of the construction, Schreiner visited the building site approximately six to eight times. The work was done entirely by subcontractors who had been used on other construction jobs by Williams and Schreiner. The subcontractors were paid by ABI but worked under the supervision of Schreiner. When the job was completed Williams signed the final payment affidavit on which it was indicated that Williams was the contractor on the job. Oleksy was on the site daily to inspect the work. He complained periodically about various aspects of the job to Roger Williams. His main complaint concerned the trusses on the roof which he contended were out of alignment causing a wavy and uneven roof line. After the house was essentially completed, Oleksy lodged a complaint with Williams concerning the workmanship on the roof. Williams sent a carpenter to visit the premises who found some "variations" and worked for approximately three hours to correct the problem. He was then told by Oleksy it looked okay. Within the next few days, Oleksy again complained to Williams that the roof was wavy. Williams then sent out a roofing crew to attempt to correct the problem. After they completed their work, Williams received no further indication that the owner was unhappy. Williams later had a local relator familiar with the subdivision and an experienced carpenter who had framed more than 150 homes to view the roof. Both concluded the roof was of good workmanship and of similar quality to other homes in the neighborhood. Oleksy later filed a complaint with the City of Palm Bay concerning his roof. The City sent its chief building official to inspect the home. He described the roof as being of "poor workmanship". The same conclusion was reached by the city building inspector who also inspected the property. Because of this, the City made the notation "Hold problem roof" in its file and did not issue a certificate of occupancy to Oleksy. However, the City did not construe the roof to constitute a violation of the building code. Respondents asserted that a 1979 change in the law as to the qualification of agents caused doubt and confusion as to what was required by ABI and Williams. They also point out that if indeed a violation occurred, it was not intentional. Rather, Respondents simply desired to comply with all applicable statutes and regulations so that their construction businesses could continue to operate in a lawful manner. Other than the alleged violations herein, Respondents were not shown to have been subject to any prior disciplinary proceedings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Roger S. Williams, be found guilty as charged in Count I, and be given a public reprimand. the remainder of the charges should be dismissed. It is further RECOMMENDED that Respondent, Frederick L. Schreiner, be found guilty as charged of all allegations except willfully and deliberately violating a state law, and be given a public reprimand. DONE and ENTERED this 29th day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1982.
The Issue Did Respondent violate Section 489.129(1)(h), Florida Statutes, and, if so, what discipline should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida vested with statutory authority to regulate the practice of contracting under Chapters 455 and 489, Florida Statutes. Respondent is a licensed certified residential contractor in the State of Florida. Respondent's license number, as certified by Julie Odom, Department's Alternate Records Custodian, is CRC 20166. However, the Administrative Complaint alleges the license number to be CR C020166. Respondent's licensure status is "Delinquent, Active." On May 18, 1989, the Department entered a Final Order in DOAH Case No. 88-3308 wherein Respondent was found guilty of violating Section 489.129(1)(h),(j),(k), and (m), Florida Statutes. On September 27, 2000, the City of Cape Coral, Florida, Contractor's Regulatory Board (Board) entered into a Settlement Agreement (Agreement) with Respondent, in regard to a complaint, Case No. 00-01, wherein Respondent was charged with violating the following Sections of the City of Cape Coral Code of Ordinances: 6-10.1:, To make misleading, deceptive, untrue, or fraudulent representations in the practice of his contracting profession; 6-10.8: Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diversion, the contractor is or will be unable to fulfill the terms of his obligation or contract; 6-10.10: Failing in any material respect to comply with the provisions of the Code; 6-10.11: Abandoning of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and the City and without just cause; and 6-10.13: Being found guilty of fraud or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting. The Agreement provided that Respondent was pleading No Contest to the charges that he violated the aforementioned sections of the City of Cape Coral's Code of Ordinances and that Respondent's plea did not act as an admission of guilt as to the above mentioned charges. The Agreement provided for Respondent's permit pulling privileges to be revoked for a period of 90 days starting August 23, 2000. By an Order dated December 29, 2000, the Board, after hearing and discussing the charges made against Respondent, voted to accept and approve the Agreement. By this Agreement, Respondent's contracting license was disciplined by the City of Cape Coral. The total investigative and prosecution costs to the Department, excluding costs associated with any attorney's time, is $967.09.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of Chapter 61G4-17, Disciplinary Guidelines, Florida Administrative Code, with consideration for the repeat violation of Section 489.129(1)(h), Florida Statutes, it is RECOMMENDED that the Department enter a final order finding Respondent, Robert Mensching guilty of violating Subsection 489.129(1)(h), Florida Statutes, and for such violation: (a) impose an administrative fine in the amount of $5,000.00; (b) assess costs in the amount of $967.09; and (c) revoke Respondent's Certified Residential Contractor's License. DONE AND ENTERED this 21st day of March, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 21st day of March, 2003. COPIES FURNISHED: Kimberly V. Clark, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Mensching 1719 Northeast 23rd Terrace Cape Coral, Florida 33909 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact At all times pertinent to the issues presented, Respondent was a registered residential contractor under license number RR 0024559, issued to Kenneth Rowland qualifying Phoenix Construction Services, Inc., issued in April 1975. On May 12, 1977, Angela Close entered into a contract with C & C Roofing Company of Longwood, Florida, to enclose and make a room of the carport on her home located at 215 Ulysses Drive, Apopka, Florida. The contract, which detailed the work to be done, called for a contract price of $2,500 and stipulated the work was to be completed in approximately three weeks from start date. The amount of $1,150 was to be paid when the job was started, and the balance was to be paid upon completion and acceptance. This agreement was signed by Angela Close and J. D. Carver. Ms. Close had given the contract to Carver because she worked with his wife at Seminole Community College and had been advised by her that Carver was in financial difficulty and needed the work. The contract was signed at Close's house, where Carver came with his wife, bringing the contract to be signed. Carver did the preliminary measuring work, but when actual construction began, Respondent was present and accomplished the majority of the work. On May 26, 1977, 14 days after the contract was signed, Respondent pulled a building permit #99146 to accomplish the work called for in the contract, from the Orange County Building Department. Several weeks after the work was started, Respondent asked Ms. Close for some additional progress payments on the job. Since she had already paid Carver in full according to the terms of the contract with him, she refused to pay Respondent, telling him she had paid all that was called for under the terms of her contract with Carver. When she said this, Respondent appeared quite surprised to learn of the contract and angry as well. On June 30, 1977, Respondent wrote a letter to the Orange County Building Department notifying that office that he had stopped work on that project because of nonpayment and requesting his name and license number be removed from the permit. As a result, the permit was cancelled on July 7, 1977. In an interview with Bobby J. Hunter, Sr., an investigator for the Department of Professional Regulation (DPR) several years later, Respondent indicated he agreed to do the job in question for Ms. Close, a friend of Carver, for $3,500. He pulled the permit and commenced work without ever talking to Ms. Close or without having a contract from her to do it, relying on the word of Carver that it was proper to do so. He received several payments from Ms. Close, transmitted through Carver. Two were in cash, and one was a check. When Respondent found out that Ms. Close had a contract with Carver for $2,500 and had paid him in full, he realized he would not receive funds to satisfy the work he had put in on the job, and he ceased work. The investigative report prepared by Mr. Hunter includes summaries of the interviews with both Carver and Respondent which state that Carver and Respondent were partners. Rowland, in his testimony at the hearing, denied any partnership relation. In light of the fact that these summaries are second-hand hearsay, contradicted by sworn testimony of the Respondent that he was not a partner of Carver, I resolve that dispute in favor of the Respondent and find that he was not a partner of Carver. Respondent contends under oath, and I so find, that he pulled the permit to do the work without knowledge of the prior contract between Close and Carver, as a favor to Carver who was reportedly a friend of Close. It was his understanding that, though Carver made the arrangements, it was his, Respondent's contract with Close for the figure he had quoted to Carver after his first survey of the job site, $3,500. He had been told by Carver not to talk with Close, as she did not speak English well, and he admitted to having made a grand mistake in proceeding without a contract from the owner Close. Carver's reliability is not the best. Mr. Hunter, investigator for DPR, indicated that Carver made some false statements to him in other cases. As a result, though Carver alleges he and Respondent were partners, and even Respondent's statement to Hunter seems to so indicate, there was, in reality, no partnership requiring Respondent to qualify C & C Roofing on his license, though there was plans to do so in the future.
Recommendation Based on the foregoing, it is RECOMMENDED That Petitioner enter a final order dismissing the Administrative Complaint. RECOMMENDED this 19th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1983 COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Kenneth Rowland 4403 North Powers Drive Orlando, Florida 32808 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan, Executive Director Construction Industry Licensing Board Department of professional Regulation Post Office Box 2 Jacksonville, Florida 32202
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
