03-001643 Department Of Business And Professional Regulation vs. Helmuth Geiser Status: Closed Recommended Order on Tuesday, September 2, 2003.

Summary: Respondent violated relevant statute by holding himself out as an architect and offering to provide architectural services without a Florida license. Evidence insufficient to demonstrate that Respondent performed "architectural services."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1643

)

HELMUTH GEISER, )

)

Respondent. )

)

RECOMMENDE D ORDER

Pursuant to notice, Lawrence P. Stevenson, Administrative

Law Judge, Division of Administrative Hearings, conducted a

formal hearing in the above - styled case on June 18, 2003, in

Fort Myers, Florida.

APPEARANCES

For Petitioner: David K. Minacci, Esquire

Smith, Thompson, Shaw and

Manausa, P.A.

2075 Centre Point Boulevard

Tallahassee, Florida 32308 - 4893

For Respondent: Darrin R. Schutt, Esquire

Seemann & Schutt, P.A.

1105 Cape Coral Parkway, East, Suite C

Cape Coral, Florida 33904

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the

Administrative Complaint and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On April 24, 2003, Petitioner alleged in a four - count

Administrative Complaint that Respondent had engaged in the

unlicensed practice of architecture. On May 5, 2003, Respondent

submitted an E lection of Rights form denying the allegations and

requesting a formal hearing. On May 7, 2003, this matter was

forwarded to the Division of Administrative Hearings for

assignment of an Administrative Law Judge and conduct of a

formal administrative heari ng.

At the hearing, Petitioner offered the testimony of Robert

Burandt, an attorney practicing in Cape Coral; Lester V. Smith,

an investigator employed on behalf of Petitioner; Cent

Manausa, an expert in the field of architecture; and of

Respondent, H elmuth Geiser. Petitioner’s Exhibits 1 through 18

were admitted into evidence, including the deposition testimony

of Mr. Geiser.

Respondent testified on his own behalf and offered the

testimony of Ernest Seemann, an attorney practicing in Cape

Coral. Re spondent’s Exhibits 1 and 2 were admitted into

evidence.

A Transcript of the hearing was filed at the Division of

Administrative Hearings on July 7, 2003. Petitioner filed a

Proposed Recommended Order on July 15, 2003. Without objection,

Respondent’s Pro posed Recommended Order was filed on July 28,

2003. Both parties' proposals have been given careful

consideration in the preparation of this Recommended Order.

All citations are to Florida Statutes (2002) unless

otherwise indicated.

FINDINGS OF FACT

Bas ed on the oral and documentary evidence adduced at the

final hearing and the entire record in this proceeding, the

following findings of fact are made:

1. The Department of Business and Professional Regulation

("Department") is the state agency charged wi th regulating the

practice of architecture and interior design pursuant to

Subsection 20.165(4)(a)1. and Chapters 455 and 481.

2. The Department has jurisdiction over the unlicensed

practice of architecture pursuant to Subsections 455.228(1) and

481.223(1 )(a).

3. At all times relevant to this proceeding, Respondent,

Helmuth Geiser, was not duly registered or certified to engage

in the practice of architecture pursuant to Section 481.213.

4. At all times relevant to this proceeding, Geiser of

America, I nc. ("Geiser of America"), was not duly registered or

certified to engage in the practice of architecture pursuant to

Section 481.213. Helmuth Geiser was the president and sole

shareholder of Geiser of America.

5. Mr. Geiser holds a Degree of Geometer from the College

of Modena, Italy. Mr. Geiser explained that the geometer degree

encompasses surveying, engineering, structural engineering, and

architecture and that the degree qualifies him to work as an

architect and engineer in all countries of the Eu ropean Union.

The Department offered no evidence contradicting Mr. Geiser's

description of the geometer degree.

6. The complaint in this case was initiated by Claudio

Riedi, an attorney representing Tranquility Bay Development,

Inc. ("Tranquility Bay"), and its ultimate principal, Joern

Eckermann, in litigation against Mr. Geiser and Geiser of

America.

7. On or about July 16, 1996, Geiser of America entered

into a contract with Tranquility Bay "to design, engineer and

supervise the Development of a - 70 acre land, located in Pine

Island, Florida, in Section 16, Township 445, Range 22E, on

Tranquility Bay Road." Tranquility Bay was a corporation formed

to develop a 75 - unit upscale residential project on the

aforementioned property. The project was to be a "fly - in"

community with its own centrally located airstrip.

8. The majority shareholder of Tranquility Bay was Somec

America, Inc., which was in turn owned by Mr. Eckermann. Both

Mr. Eckermann and Mr. Geiser were directors of Tranquility Bay

when t he contract was executed. While Mr. Geiser was an officer

of the corporation, there was no evidence that he had an

ownership interest in Tranquility Bay.

9. The contract refers to Tranquility Bay as "Client" and

refers to Geiser of America as "Architect ." The scope of

services to be provided by Geiser of America as "Architect" were

set forth as follows:

Architect shall

(A) investigate the above cited real

property for suitability and the

requirements, legal or otherwise, that will

affect the planning of the Project;

(B) pre - plan the entire Project;

(C) work up the final design of the

Project, including, but not limited to, the

architectural plans and drawings required;

(D) draft and submit all documentation

required for obtaining of governmental

permits;

(E) carry out the detailed planning of the

Project;

(F) prepare and issue to appropriate

construction companies, the construction

contract bidding documentation;

(G) supervise the entire project,

including, but not limited to, site

inspectio ns, constructions [sic]

supervision, and/or construction

observation;

(H) coordinate work flow with the

contractor;

(I) obtain the required engineering

services from licensed engineers;

(J) obtain the required services from

specialists (ecologist, env ironmentalist);

(K) obtain the required services from

surveyors.

Not included in these services are soil

tests (borings), ev. [sic] coastal

engineering (Boat Dock & Seawall) permitting

and Mangrove - trimming, and all fees payable

for permits.

10. The c ontract called for Geiser of America to receive

$145,000 for the services listed in (A) through (F) above,

$35,000 for the services listed in (G) and (H) above, and

$130,000 for the services listed in (I) through (K) above, for a

total of $310,000.

11. Mr . Geiser completed a series of preliminary site

drawings setting forth a proposed layout of the project,

including 70 or so lots for single - family residences, an

airstrip, a tennis clubhouse, a water treatment plant and

retention area, and a nature preserv e surrounding an eagle's

nest on the property. The Department's expert, Cent

Manausa, testified that Mr. Geiser's preliminary site drawings

were " preliminary study designs" as that term is employed in the

definition of "architecture" found in Section 481.203(6).

12. The drawings do not support this contention.

Mr. Geiser more accurately described the drawings as layouts of

the subdivision of the land, not study designs preparatory to

the design and construction of a structure or group of

structures . The drawings set out a proposed footprint for the

project, sizing the home lots and locating the other structures

on the property, but the drawings did not provide a proposed

design for anything to be built on the property.

13. Mr. Geiser testified that the entire purpose of the

contract was for the layout and subdivision of the land, not to

build or design any structures for human habitation. Mr. Geiser

anticipated designing some of the single - family residences in

the project, but foreswore any intenti on to design or build the

tennis clubhouse, landing strip, or any other kind of structure

depicted on his preliminary drawings.

14. Mr. Geiser attributed the contract's reference to

Geiser of America as the "architect" of the project to his

lawyer, who dr afted the document. Mr. Geiser testified that his

command of the English language was not good in 1996 and that he

did not appreciate the significance of the term "architect" at

the time the contract was executed.

15. Mr. Geiser testified that he underst ood that he was

not allowed to practice architecture in Florida. He intended to

hire engineers to perform those tasks that would require the

obtaining of permits, such as construction of the airstrip,

tennis courts, roads, and installation of utilities.

1 6. Mr. Geiser's limited understanding of English may

explain the use of the term "architect" as a shorthand reference

to Geiser of America throughout the contract. However,

Mr. Geiser's testimony as to the services contemplated is

contradicted by the pla in language of the contract itself, which

stated that Geiser of America will "work up the final design of

the Project, including, but not limited to, the architectural

plans and drawings required ." (Emphasis added.) It further

stated that Geiser of Ameri ca will "draft and submit all

documentation required for obtaining of governmental permits"

and "supervise the entire project, including, but not limited

to, site inspections, constructions [sic] supervision, and/or

construction observation." The contract clearly called for

Geiser of America to shepherd the Tranquility Bay project to

completion, including the provision of architectural services,

not merely to draw a layout and subdivide the land.

17. Before the project reached the point of permit

applicat ions, a dispute arose between Mr. Geiser and

Mr. Eckermann over payments due under the contract. In October

1998, Mr. Geiser hired a local attorney, Robert Burandt, to

draft and file a claim of lien on the real property for an

alleged $258,940 owed by Tra nquility Bay for services rendered

under the contract. The claim of lien alleges that Geiser of

America "furnished labor, services or materials consisting of

the furnishing of subdivision improvements, architect, landscape

architect , engineering, surveyor and mapper services, and other

services to make the real property suitable as a site for

improvement. . . ." (Emphasis added.)

18. Mr. Burandt later withdrew from his representation of

Mr. Geiser. In the ongoing litigation, Mr. Burandt later

submitted answers to interrogatories propounded by counsel for

Mr. Eckermann. One of the interrogatories asked, "Did Helmuth

Geiser disclose to you prior to recording of the lien that he

was a licensed Florida architect at times relevant to this

Complaint?" Mr. Bu randt's answer was: "Mr. H. Geiser advised

me that he was a German Architect licensed in Germany and

Florida."

19. Mr. Burandt testified at the hearing in this matter.

His testimony was less direct than his interrogatory answer.

Mr. Burandt did not test ify that Mr. Geiser ever directly stated

that he was a Florida - licensed architect. Rather, Mr. Burandt

testified that he inferred Mr. Geiser was claiming to be a

Florida - licensed architect from the fact that Mr. Geiser signed

the claim of lien swearing th at he had provided architectural

services to Tranquility Bay.

20. Mr. Geiser testified that he was introduced to

Mr. Burandt by another local attorney, Ernest Seemann.

Mr. Seemann had represented Mr. Geiser in other matters, but had

a conflict that preve nted him from representing Mr. Geiser in

the Tranquility Bay matter. Mr. Geiser testified that, in

Mr. Seemann's presence, he told Mr. Burandt that he was not

licensed to practice architecture in Florida.

21. Mr. Seemann testified that he was present d uring a

meeting in which Mr. Geiser told Mr. Burandt that he was not a

Florida - licensed architect. Mr. Seemann could not recall

whether this meeting took place before or after the claim of

lien was filed.

22. The Department submitted an affidavit filed b y

Mr. Eckermann in the Tranquility Bay litigation.

Mr. Eckermann's affidavit stated, in relevant part:

Attorney Earnest [sic] Seemann of Cape Coral

referred me to Helmuth Geiser . . . whom he

represented to be a skilled architect, so

that he could assist Somec in a specific

investment opportunity. Geiser told me he

was an architect, licensed in Florida and

abroad, which was supported by his business

card, which he gave me, and by his

letterhead.

23. Mr. Eckermann did not testify at the hearing in this

m atter. Mr. Geiser strongly denied having told Mr. Eckermann

that he was a Florida - licensed architect. Mr. Seemann, who also

knew Mr. Eckermann, also denied ever telling Mr. Eckermann that

Mr. Geiser was licensed in Florida.

24. Mr. Seemann testified tha t he and Mr. Eckermann

conversed in German and that in formal German conversation it is

customary to refer to a person by his name and occupation.

Thus, when they discussed Mr. Geiser, Mr. Seemann referred to

him as "Herr Architekt Geiser," in deference t o Mr. Geiser's

status as an architect in Europe. Mr. Seemann theorized that

this form of reference may have given Mr. Eckermann the

impression that Mr. Geiser was licensed to practice architecture

in Florida.

25. Given that Mr. Eckermann did not testify at the

hearing, the evidence presented is insufficient to demonstrate

that Mr. Geiser directly told Mr. Eckermann that he was a

Florida - licensed architect. However, when the hearsay contained

in Mr. Eckermann's affidavit is considered in conjunction with

the contract between Tranquility Bay and Geiser of America and

the claim of lien, it becomes apparent that Mr. Eckermann had

adequate cause to believe that Mr. Geiser was a Florida - licensed

architect.

26. The evidence presented at the hearing established that

Mr. Geiser, through Geiser of America, offered to render

architectural services in connection with the design and

construction of the Tranquility Bay development. In attempting

to collect monies allegedly owed under the contract, Mr. Geiser

swore tha t he had provided architectural services to Tranquility

Bay. Even if Mr. Geiser did not expressly tell Mr. Eckermann

that he was a Florida - licensed architect, Mr. Geiser's act of

entering into a contract to provide architectural services in

Florida operat ed as a de facto assertion of his Florida

licensure.

27. The evidence presented at the hearing did not

establish that Mr. Geiser actually performed architectural

services in relation to his performance of the Tranquility Bay

project.

28. Mr. Riedi's co mplaint included information about

projects other than Tranquility Bay. In a deposition dated

April 7, 1999, Mr. Geiser admitted under oath that he provided

services to a Mr. Kohler on a commercial project that included

restaurants and offices. Mr. Geise r stated that he had no

written contract with Mr. Kohler, but expected to receive

$70 - 80,000 pursuant to a verbal agreement with Mr. Kohler. At

the hearing in this case, Mr. Geiser testified that he provided

only "aesthetic design" concepts and early l ayouts setting forth

raw square footage of the buildings to be placed on the

property. Without more evidence, it cannot be found that

Mr. Geiser provided architectural services on the Kohler

project.

29. In the same April 7, 1999, deposition, Mr. Geiser

admitted under oath that he provided layout designs to subdivide

the land on a commercial project known as Sky Manor. At the

hearing in this case, Mr. Geiser testified that his layouts

simply subdivided the land with lines drawn on a map of the

property. Mr. Geiser denied any agreement to design or

construct any structures on the property. Without more

evidence, it cannot be found that Mr. Geiser provided

architectural services on the Sky Manor project.

30. In a letter dated May 22, 1998, from Geiser of America

to the U.S. Consulate concerning his application for renewal of

E - eaty Investor Status, Mr. Geiser stated that Geiser of

America "is in the business of providing architectural and

engineering services in Southwest Florida, including consulting

and design." However, the letter also states that Geiser of

America "primarily designs and helps build residences in the

$200,000 to $800,000 range."

31. In a Nonimmigration Treaty Trader/Investor Visa

Application, Mr. Geiser stated that his firm prov ides

"architectural and engineering services, including consulting

and design [and] supervise[s] building projects." For a period

of time in the late 1990's, Geiser of America's letterhead

included "architecture" among the services provided by the

company . During the same period, Mr. Geiser's business card

designated him as "architect," the German spelling of the term.

Advertisements placed by or for Geiser of America in German

language publications designated Mr. Geiser as an "architekt" or

as providing architectural services. However, these

advertisements also made it clear that Geiser of America's

practice was limited to the design and construction of single -

family residences.

32. In explanation, Mr. Geiser disclaimed any attempt to

imply that he was a Florida - licensed architect. He stated that

he understood that the statutory definition exempted work on

single - family residences from the definition of "architecture,"

but that as a practical matter he could think of no other term

to describe the work he performs in designing and building these

residences. Thus, he referred to his services as

"architectural," though he had in mind nothing that would

violate the terms of Chapter 481, Florida Statutes. Mr.

Geiser's explanation is credited for reasons mo re fully

explained in the conclusions of law below.

33. In conclusion, the Department established by clear and

convincing evidence that Mr. Geiser offered to perform

architectural services and held himself out as a Florida -

licensed architect when he enter ed into the contract for the

Tranquility Bay project. The Department failed to establish any

of the other allegations of the Administrative Complaint by

clear and convincing evidence.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jur isdiction over the parties and subject matter of this

proceeding, pursuant to Subsections 120.57(1) and 455.028(1) and

Section 120.569.

35. Pursuant to Subsection 455.028(1), the Department is

empowered to impose an administrative penalty not to exceed

$5 ,000 per incident upon any person not licensed by the

department who has violated any statute related to the practice

of a profession regulated by the Department.

36. Section 481.223 provides, in relevant part:

(1) A person may not knowingly:

(a) Prac tice architecture unless the person

is an architect or a registered architect;

* * *

(c) Use the name or title "architect" or

"registered architect," or "interior

designer" or "registered interior designer,"

or words to that effect, when the person is

n ot then the holder of a valid license

issued pursuant to this part. . . .

37. Section 481.203(6) defines "architecture" to mean:

[T]he rendering or offering to render

services in connection with the design and

construction of a structure or group of

stru ctures which have as their principal

purpose human habitation or use, and the

utilization of space within and surrounding

such structures. These services include

planning, providing preliminary study

designs, drawings and specifications, job -

site inspecti on, and administration of

construction contracts.

38. Section 481.229 sets forth exemptions from the

requirement of architectural licensure, including the following:

(1) No person shall be required to qualify

as an architect in order to make plans and

s pecifications for, or supervise the

erection, enlargement, or alteration of:

* * *

(b) Any one - family or two - family residence

building, townhouse, or domestic outbuilding

appurtenant to any one - family or two - family

residence, regardless of cost. . . .

39. Because Respondent is subject to penal sanctions in

this proceeding, i.e. , the imposition of an administrative

penalty, the Department has the burden of proving by clear and

convincing evidence the specific allegations in the

Administrative Comp laint. See, e.g., Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne, Stern & Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

40. The definition of "clear and convincing" ev idence is

adopted from Solomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983), which provides:

[Clear] and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remem bered, the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy , as to the

truth of the allegations sought to be

established.

See also Evans Packing Company v. Department of Agriculture

and Consumer , 550 So. 2d 112, 116 n.5 (Fla. 1st DCA 1989).

41. The Department has proven by clear and convincing

evidence that Helm uth Geiser, not a Florida - licensed architect,

offered to render architectural services by way of entering into

the above - described contract with Tranquility Bay, in violation

of Subsection 481.223(1)(a). The Department has proven by clear

and convincing e vidence that Mr. Geiser's use of the term

"architect" in the context of the contract, which expressly

contemplates the provision of unlicensed architectural services,

constitutes a violation of Subsection 481.223(1)(c).

42. The Department offered insuffic ient evidence to prove

by clear and convincing evidence that Mr. Geiser performed or

offered to perform services for which licensure is required in

connection with the Kohler project or the Sky Manor project.

43. As to the various immigration - related docu ments, the

business card and letterhead, and the advertisements, the

Department did not prove by clear and convincing evidence that

Mr. Geiser violated Subsection 481.223(1)(c) by holding himself

out as an architect. None of the evidence presented by the

Department showed Mr. Geiser unequivocally stating that he was a

Florida - licensed architect. In those instances in which

Mr. Geiser called himself an architect, he used the German

spelling of the word. Mr. Geiser's references to himself as

providing arch itectural services were qualified by the statement

that his practice was limited to single - family residences.

44. The Department's contention appears to be that

Florida's statutory scheme provides that the design and

construction of single - family reside nces is not "architecture,"

and thus any reference made by Mr. Geiser to providing

architectural services constitutes a violation. However, the

definition of "architecture" in Subsection 481.203(6) does not

by its terms exclude the design and construction of single -

family residences. Even the exemption found in Subsection

481.229(1)(b) does not state that the design and construction of

single - family residences is not "architecture." The exemption

merely states one who designs and builds single - family

res idences is not required to obtain a Florida license.

45. Mr. Geiser is an architect, albeit one without a

Florida license, who lawfully applies his skills to the design

and construction of single - family residences. It is difficult

to see how he can descr ibe his services to potential clients

without employing the term "architecture." If he uses the term

with no intent to mislead clients as to his licensure status or

induce clients to retain him to perform services for which

licensure is required, then the purpose of the statute in

protecting the public from unlicensed practitioners has been

served and Mr. Geiser cannot be held to have knowingly violated

Subsection 481.223(1)(c).

46. In its Proposed Recommended Order, the Department

recommends the imposit ion of the maximum $5,000.00 penalty for

each violation. There is nothing in the record to indicate any

previous complaints against Respondent, and the two violations

proven by the Department arose out of the same contract. Thus,

an administrative penalt y in the amount of $1,000.00 for each

violation is more appropriate here.

47. The Department asserts in its Proposed Recommended

Order that it incurred investigative costs in the amount of

$1,639.10 in this case. However, no affidavit of costs

establish ing this assertion is in evidence.

RECOMMENDATION

Based on all the evidence of record, it is

RECOMMENDED t hat the Department of Business and

Professional Regulation enter a final order finding that

Respondent committed one violation of Subsection 481.223( 1)(a)

and one violation of Subsection 481.223(1)(c) and that an

administrative penalty of $2,000.00 be imposed.

DONE AND ENTERED this 2nd day of September, 2003, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEV ENSON

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

Divi sion of Administrative Hearings

this 2nd day of September, 2003.

COPIES FURNISHED :

David K. Minacci, Esquire

Smith, Thompson, Shaw & Manausa, P.A.

2075 Centre Pointe Boulevard

Tallahassee, Florida 32308 - 4893

Darrin R. Schutt, Esquire

Seemann & Schutt, P.A.

1105 Cape Coral Parkway, East

Suite C

Cape Coral, Florida 33904

Juanita Chastain, Executive Director

Board of Architecture and

Interior Design

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Hardy L. Roberts III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written except ions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.