STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF )

PROFESSIONAL ENGINEER AND )

LAND SURVEYORS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2224

)

CLARENCE L. KIMBALL, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Myers, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on March 15, 1979. The parties were represented by counsel:

APPEARANCES

For Petitioner: Ford L. Thompson, Esquire

Suite 701, Lewis State Bank Building Tallahassee, Florida 32302

For Respondent: Stephen W. Buckley, Esquire

Corner Main and Broadway Fort Myers, Florida 33902

By administrative complaint dated November 2, 1977, petitioner alleged that respondent "affixed his name and his professional engineering seal on" certain building plans which "were not prepared by him or under his responsible supervision, direction or control" thereby violating Section 471.26(1)(f) [sic]," Florida Statutes (1977). Alternatively, the administrative complaint alleges that respondent did prepare the plans in question, or at least the structural portion, but that respondent "has not demonstrated that he was qualified to undertake the structural plans for such a project" and that the "structural plans contain serious and hazardous inadequacies or deficiencies thereby violating Section 21H-14.06, Rules of Conduct for professional engineers."

FINDINGS OF FACT

1. A draftsman named Ward approached respondent with plans which Mr. Ward told respondent he had been given by one W. J. "Jack" Harlan. Mr. Ward also told respondent that Mr. Harlan had said that the plans were for a standard steel "pre-engineered" Mitchel Building, which Mr. Harlan proposed to construct for D & D Machine Specialties, Inc. in Fort Myers, as an annex to an existing building. Respondent was given to understand by Mr. Ward that Mr. Harlan wanted respondent "to prepare a plot plan and foundation plan, [and a plan for an]

   electrical riser and . . . [to] copy . . . some details furnished by" Mr. Harlan. Respondent agreed to undertake the project.

   
   

2. In accordance with respondent's instructions, Mr. Ward drafted four sheets of drawings. Respondent "checked [the drawings] . . . , made some minor changes and corrections and . . . signed them." (T65) These drawings came in as petitioner's exhibit No. l. The first of the four sheets contains a schematic riser diagram, an electrical floor plan and a plot plan. On this sheet is written "PRE-ENGINEERED METAL BUILDING BY MITCHEL." The second sheet contains a foundation plan and detailed drawings of columns. On the second sheet is written "SPECIFICATIONS COPIED FROM ENGR. DATA BOOK, AS PUBLISHED BY MITCHEL METAL BUILDINGS, AS APPROVED BY STEEL JOIST INSTITUTE." The third sheet contains floor plans and drawings of the north, east, south and west elevations of the proposed structure. The fourth sheet contains a roof framing plan, a stress diagram, and wall and other structural details. On this sheet is written "SPECIFICATIONS COPIED FROM COMPUTER [sic] PRINT OUT, & ENGR. DATA BOOK, BY MITCHEL STEEL BUILDINGS, AS APPROVED BY STEEL JOIST INSTITUTE." Respondent's seal and signature appear on each of the four sheets. The first sheet is dated February 23, 1977. Each of the other sheets is dated February 14, 1977.

   
   

3. Mr. Harlan submitted all four sheets of petitioner's exhibit No. 1 to Fort Myers' Building and Zoning Department as part of his application for a building permit. Mr. Alfred J. Heinman, Director of Fort Myers' Building and Zoning Department, and others in the Building and Zoning Department who reviewed the drawings, had reservations about the stability and strength of rails proposed along either side of the planned structure to bear the weight of a movable overhead crane. Accordingly, the Building and Zoning Department denied Mr. Harlan's application for a building permit. Mr. Harlan never told respondent that his permit application had been denied.

   
   

4. Instead, he engaged Jorge Zorilla, a professional civil engineer whose specialty is structural design engineering, to remedy the deficiencies in the drawings respondent had done. In examining petitioner's exhibit No. 1, Mr. Zorilla concluded that, if the building had been constructed in accordance with respondent's drawings, trying to lift with the overhead crane in an eccentric position, or even a strong wind, could have caused its collapse. Specifically, the connections between roof members and columns proposed in petitioner's exhibit No. 1 were not strong enough to resist lateral forces on the building; there was inadequate provision for the support of the overhead crane; and there was no bracing system between the columns to resist winds in an easterly or westerly direction. In Mr. Zorilla's opinion, respondent gave no consideration to forces that would have been exerted on the structure by the wind and also failed to consider the consequences of an eccentric crane load. As originally drawn by respondent, the plans did not meet the requirements of the Southern Building Code.

   
   

5. Before redrawing sheet four of petitioners exhibit No. 1, Mr. Zorilla asked Mr. Harlan for any information he had "from the Mitchell Steel Building people." (T18) Mr. Harlan answered that he had none; that the proposed building was not a standard model; and that he had collected building materials from various sources. As reflected by petitioner's exhibits Nos. 3 and 4, Mr. Zorilla made several changes in sheet four of petitioner's exhibit No. 1, including doubling the number of joists in the area where the crane load would exist; increasing from 4" to 12" the height of plates welded to columns to support the crane girders; specifying that 6" x 1/4" plates be welded to the bottoms of the joists near the points of connection with columns; modifying plans for the corner columns; specifying that sway bars be included in two bays

   on both of the longer walls; and specifying larger angles for bridging. Mr. Ward, whom Mr. Harlan had engaged for the purpose, drafted the changes specified by Mr. Zorilla. When Mr. Zorilla saw Mr. Ward's first draft, he asked him to make certain changes. After Mr. Ward had accomplished the changes, Mr. Zorilla signed and sealed the revised sheet four. On the basis of the plans as revised, Fort Myers' Building and Zoning Department granted Mr. Harlan's application for a building permit.

   
   

6. Respondent testified that he was not registered as a structural engineer, "that it was a little over . . [his] head," (T56) and that he had never intended that the plans he signed and sealed should be used by themselves. Respondent testified without contradiction that it was customary, in the case of "pre-engineered" buildings, for the structural engineering to be done by one engineer, while other engineers prepared electrical, air conditioning and other plans for the same structure.

   
   

7. The foregoing findings of fact should be read in conjuction with the statement required by Stuckey' s of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.

   
   

   CONCLUSIONS OF LAW

   
   

8. There is no Section 471.26(1)(f) , Florida Statutes (1977). Pursuant to Section 471.26, Florida Statutes (1977) however, petitioner is authorized to revoke or suspend a certificate of registration whenever a registrant affixe[s] his seal or his name to any plans, designs, drawings or specifications which were not prepared . . . under his responsible supervision, direction or control." Section 471.26(1)(e), Florida Statutes (1977). In the present case, respondent copied certain specifications in drawings which he signed and sealed, but he clearly indicated that the specifications were not his work. This disclaimer removes respondent's conduct from the reach of Section 471.26(1)(e), Florida Statutes (1977). With respect to the first specification in the administrative complaint, petitioner did not establish its case.

   
   

9. The evidence established that structural engineering is a "subject matter of which [respondent] lacks competence by virtue of training and experience." Rule 21H-14.06(2), Florida Administrative Code. Respondent nonetheless "affix[ed] his signature . . . [and] seal to . . . [an] engineering plan in th[at] subject matter. . . ." Id. Accordingly, petitioner established legal grounds for disciplinary action against respondent's certificate of registration.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspended respondent's certificate of registration for sixty (60) days.

DONE and ENTERED this 5th day of May, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

APPENDIX

Respondent's proposed findings of fact have been rejected as unsupported by the evidence. Petitioner did present evidence "as to its allegation" in the first specification of the administrative complaint. Taken as a whole, the evidence did establish that respondent knew or should have known that he had taken on a structural engineering task.

Petitioner's proposed findings of fact have generally been adopted, in substance, insofar as relevant, except that the evidence did not establish whether or not the plans drawn at respondent's direction resembled "a Mitchell pre-engineer[ed] building"; and the plates specified by Mr. Zorilla were six inches by one quarter inch.

COPIES FURNISHED:

Ford L. Thompson, Esquire Suite 701, Lewis State Bank Building

Tallahassee, Florida 32302

Stephen W. Buckley, Esquire Corner Main and Broadway Fort Myers, Florida 33902

================================================================= AGENCY FINAL ORDER

=================================================================

IN THE FLORIDA STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS

FLORIDA STATE BOARD OF PROFESSIONAL ENGINEERS AND

LAND SURVEYORS OF THE DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL

REGULATION, a State agency, Complainant,

vs. DOAH CASE NO. 77-2224

CLARENCE L. KIMBALL,

Registrant.

/

FINAL ORDER

THIS CAUSE came to be heard before the Florida State Board of Professional Engineers and Land Surveyors, hereinafter referred to as Board, in Orlando, Orange County, Florida, on June 9, 1978, to give consideration to the recommended order filed by the Division of Administrative Hearings dated May 5, 1978. The full membership of the Board was present with the exception of Roy H. Barto. Clarence L. Kimball, the registrant, was present.

No written exceptions were filed by either party in this cause. Each party was given a full and unlimited opportunity to present any written and oral statement in respect of the recommended order in this cause.

Reference to the transcript regarding the hearing before the hearing officer of the Division of Administrative Hearings shall be (T).

Each member of the Board acknowledged that they had reviewed the entire record in this matter.

Both the registrant and counsel for the Board presented arguments in respect of the recommended order. The registrant also introduced into evidence without objection a written argument marked as Exhibit No. 1.

The recommended order contained tow counts as follows:

1. That the registrant affixed or permitted to be affixed his name and professional engineering seal on plans which were not prepared by him or under his responsible supervision, direction and control in violation of $471.26(1)(f) (sic) in reality & 471.26(1)(e) Florida Statutes, and

   
   

2. That the registrant did prepare the plans in question, or at least the structural portion, but that registrant has not demonstrated that he was

qualified to undertake the structural plans for such a project and that the structural plans contain serious and hazardous inadequacies or deficiencies thereby violating Section 21H-14.06, Rules of Conduct of Professional Engineers.

With respect to the findings of facts, which were not in essence contested by either party, the Board affirmed said findings of fact.

The registrant did not contest either the conclusions of law or the recommended penalty of a 60-day suspension.

Counsel for the Board did, however, contest the conclusions of law with respect to Count I of the recommended order. The Board, after considering the argument presented and having reviewed the entire record in these proceedings, moved to reject that conclusion of law of the hearing officer and found the registrant guilty as charged in Count I of the administrative complaint. The basis was as follows:

1. That the registrant did sign and seal the plans is undisputed. (T5, 42-43, 58)

   
   

2. The registrant admits to the drafting work, but claims that the designs were copied from sketches furnished by the owner (T62) -- presumably a pre- engineered building, a presumption which the registrant made no effort to verify. Regardless, the sketches are indisputably attributed to someone else and were merely redrawn by the registrant. The registrant merely signed and sealed them without exercising any supervision and control... and without actual preparation.

   
   

3. Additionally, the registrant cannot allege a disclaimer in the hopes of voiding a legal responsibility which he owes to the public-at-large by virtue of the license issued to him by this Board.

As such, the registrant is found guilty of violating the allegations contained in Count I of the administrative complaint.

After having reviewed the record and considering the arguments presented, the Board affirmed the conclusions of law in respect of Count II of the administrative complaint.

Thereafter, the Board considered the recommendations of the hearing officer, to wit, that the registrant's certificate of registration be suspended for a period of sixty (60) days.

The registrant, by virtue of his own testimony and Exhibit No. 1, acknowledged that he has already been the subject of prior disciplinary action on the same charges as in the instant complaint.

The registrant further admitted that it was his responsibility to have further checked and obtained the additional information about the structural design on a complicated building housing a five (5) ton crane which, by expert testimony, could have collapsed were his plans approved without major modifications.

After a complete review of the record, the Board finds that the hearing officer did not fully appreciate the magnitude of the possible consequences as a result of the actions of the registrant in assuming legal responsibilities for that which he is neither trained nor qualified. This is supported by the record

and by the states expert witness that the entire structure could have collapsed (T16) conceivably causing great damage and tragedy because of the professional irresponsibility which the registrant is guilty of as a matter of law.

As such, the recommended penalty of the hearing officer is hereby rejected and the certificate of registration of the registrant is hereby suspended for a period of two (2) years. As such, the registrant shall promptly surrender to the Board his professional engineer certificate of registration in the State of Florida, and his Florida professional engineer certificate of registration of the registrant is hereby suspended for a period of two (2) years. As such, the registrant shall promptly surrender to the Board his professional engineer certificate of registration in the State of Florida, and his Florida professional engineer seal.

DATED this 7th day of July, 1978.

J. Y. READ Executive Director

Florida State Board of Professional Engineers and Land Surveyors

State Office Building

400 West Robinson Street Orlando, Florida 32801

I HEREBY CERTIFY that a true copy has been furnished on the date cited above to Clarence L. Kimball, Registrant, at 7034 Overlook Drive, Fort Myers, Florida and Ford Thompson, Esquire, P.O. Box 1976, Tallahassee, Florida.

J. Y. READ

Docket for Case No: 77-002224

Orders for Case No: 77-002224