STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

PROFESSIONAL ENGINEERS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3012

)

CLARENCE KIMBALL, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing as noticed, before P. Michael Ruff, duly designated Hearing Officer with the Division of Administrative Hearings on February 24, 1984, in Fort Myers, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Carol L. Gregg, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Clarence Kimball, Pro Se

230-A 5th Street, Page Park Fort Myers, Florida 33907

This cause arose on a four (4) count amended administrative complaint filed by Petitioner by which it seeks to suspend, revoke or impose other sanctions against the Respondent's licensure status as a professional engineer in the State of Florida. In the prehearing stage of this proceeding, the Petitioner elected to voluntarily dismiss Counts II, III and IV of the complaint so that the cause proceeded to trial on the remaining Count I, in which the Respondent is charged with violating Section 471.033(1)(g), Florida Statutes (1981), and Rule 21H-19.01(3), Florida Administrative Code (1981), 1/ in that Respondent negligently prepared engineering drawings for a project known as Westwind Villas, located in Fort Myers, Florida.

Prior to the commencement of the hearing, the Petitioner and Respondent stipulated to the introduction of certain exhibits. Thus, Petitioner's Exhibits 1, 2 and 3, consisting respectively of proof of Respondent's licensure, a letter from the Respondent to Petitioner dated July 19, 1983, and six sheets of engineering design or "permit" drawings, signed and sealed by Respondent for Westwind Villas, Fort Myers, Florida were admitted. Additionally, official notice was taken of Chapter 471, Florida Statutes, and Rule 21H-19.01(3), Florida Administrative Code as being the statute and rule in effect at the time the Respondent prepared the drawings for Westwind Villas. The Respondent filed

a motion to dismiss the administrative complaint with ruling on that motion being reserved so that Petitioner could have an opportunity to prepare a response, the motion being supplied to the Petitioner at the outset of the hearing. The Petitioner presented two witnesses, Fredrick Richard Gutnechkt, the Administrative Director for Building Code Enforcement for Lee County, Florida and James Power, a professional engineer specializing in structural engineering, as an expert witness. The Respondent presented one witness, consisting of the Respondent himself. The Respondent elected to testify after being advised of his right to claim the Fifth Amendment privilege and his considered waiving of that right.

The issue in this case concerns whether the permit drawings signed, sealed and prepared by the Respondent, by which the project known as Westwind Villas was to be constructed, contained deficiencies, inconsistencies and building code violations and whether those deficiencies, inconsistencies and depicted building code violations amounted to a failure to exercise due care and regard for acceptable standards of engineering principles and practices, and constituted a failure to exercise due care in performing such a function in an engineering capacity, as more particularly alleged in the amended administrative complaint.

FINDINGS OF FACT

1. The Respondent, Clarence Kimball, is a professional engineer licensed to practice engineering in the State of Florida, holding license number PE 0009427. The Petitioner is an agency of the State of Florida charged with enforcing standards and principles of professional engineering practice imposed upon licensed professional engineers in Florida and enumerated in Chapter 471, Florida Statutes (1981), and with monitoring and regulating the licensure status of professional engineers in Florida.

   
   

2. The Respondent was retained to draft engineering design drawings for a multi-family residential project known as Westwind Villas, to be constructed in Lee County, Florida. The project consisted of two two (2) story buildings each containing four residential units. The drawings depict the first floor of the two buildings as built in place out of concrete block. The second floor of the building as depicted in the drawings, would be built of prefabricated modular units mounted on top of the concrete block, first floor construction. The purpose of these engineering drawings was to define the scope of the work to be done by the building contractor, who would do the actual construction, and to define the materials to be used by the contractor and the manner in which those materials were to be assembled.

   
   

3. These permit drawings contain an inconsistency as to which way the buildings are to face. Sheet 1 of the drawings depicts a plot plan and drainage plan for the Westwind Villas. That sheet indicates that the units are all facing west. Sheet 2 of the drawings also shows the units facing west. Sheet 5, however, depicts the units as both facing to the north. This fact was established by Petitioner and indeed, was acknowledged by the Respondent in his testimony.

   
   

4. Sheet 2 depicts the elevation and design of the foundation of both buildings. There are a number of areas of the foundation design where the drawing depicts an increase in the width of the concrete slab involved, but with no indication of the Respondent's intent as to what the dimensions of the widened portion of the slab were to be. The Respondent acknowledged that the failure to indicate the width of the slab as widened with regard to the drawing on Sheet 2, was a mistake on his part. Sheet 2 also contains a note that says

   "number 5 bars in the concrete fill are indicated by a little square." Indeed there are numerous small squares on the foundation plan indicating that number 5 reinforcing bars are erroneously sticking out of the floor of the structure.

   The Respondent admitted that the filled squares indicate reinforcing bars out in the floor of the structure, as opposed to the foundation, and that those are mistakes. Sheet 2 also provides no indication or direction to the building contractor as to the degree of compaction of soil required, the grade of lumber to be used, nor the grade and type of reinforcing steel to be used in the concrete portion of the construction.

   
   

5. Sheet 4 of the permit drawings contains details and cross sections. Section AA calls for an 8" x 16" concrete tie beam and in depicting the typical cross section of that same beam, the Respondent shows it as an 8" x 12" concrete tie beam, which would have less "shear load "or weight bearing ability. Section CC of Sheet 4 illustrates a section of the wall for which the Respondent indicates that a single wall is to be constructed of interior type wall materials. Due to the offset of the two units in their alignment arrangement with each other however, there should have been two "stud walls" designed with the exterior portions of those walls constructed out of exterior materials, since, as designed in an offset pattern, portions of the walls would indeed be exterior walls. The Respondent acknowledged here again that he should have designed the two walls providing for materials suitable for exterior wall construction. As Respondent admits, Section CC also does not indicate how the contractor is to anchor prefabricated units consisting of the second floor structure, to the beams on which they are to rest. There is no indication as to what material is to be used for the attic floor of the structures.

   
   

6. Section 5 depicts cross sections, trusses and framing details. There is inconsistency between the elevation depicted on Sheet 2 and the roof rafter plans shown on Sheet 5. The roof after plan indicates that the prefabricated second story unit is 14 feet wide without overhang on the sides. The elevation drawing, however, shows an overhang of 1' 4" on each side. There is thus an inconsistency there, and also an inconsistency between the ceiling plan above the second floor and the truss detail both of which are shown in Sheet 5. The ceiling plan indicates that the ceiling joists are to be 2" x 6". In truss detail "A" the ceiling joists are shown to be 2" x 8". Additionally, the 2" x 6" ceiling joists are overstressed in that the attic was designed to have a pull down staircase and thus is clearly intended for storage use. The standard building code in effect for this structure, requires that an attic space to be used for storage should be designed with a live load capacity of thirty pounds per square foot. The Respondent designed this attic space with a live load capacity of fifteen pounds per square foot, and thus has failed to meet building code standards.

   
   

7. Sheet 5 contains illustrations of "Sling and Jack Points" thus showing a method for lifting the fabricated units onto the concrete block first floor structure. The owner of the building ultimately decided not to use this method for lifting the prefabricated units atop the first floor, but the Respondent failed to notify the Lee County Building Department of this decision and did not file a revised sheet showing the elimination of the use of sling and jack points for lifting in the design. The drawing with regard to placement of the second floor units on top of the first floor concrete block structure was incomplete. The Respondent referred to a temporary support beam to be used during the lifting operation and indicated the specification for that beam "as depicted by reference on another sheet of the drawings. Respondent, however, did not indicate what other sheet the contractor was to refer to.

8. The permit drawings for this project, signed and sealed by Respondent, are to some extent an amalgamation of drawings from other previously designed projects, some of which are inconsistent when an attempt is made to combine the drawings into a single new design. There are a number of construction problems the Respondent failed to resolve with his drawings, and while many of the errors and inconsistencies standing alone would not be significant, the sum total of all the inconsistencies, ambiguities and inaccuracies in the drawings result in a final product which would, if used to construct the building, result in a poorly constructed, and possibly unsafe building, because of the substandard and ambiguous nature of the drawings at issue.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 129.57(1), Florida Statutes.

   
   

10. The Motion to Dismiss filed by Respondent immediately prior to the trial should be denied for having failed to state adequate grounds upon which dismissal would be appropriate. The Petitioner pled adequate facts in its amended administrative complaint such that, if proven, grounds for the discipline sought to be imposed would be established, and they were pled with sufficient specificity so as to notify the Respondent adequately of the charges against which he would have to defend. Thus, for this reason and for the reason that the motion to dismiss was filed in an untimely manner, it should be DENIED.

    
    

11. The Respondent is charged with violating Section 471.933(1)(g), Florida Statutes, which empowers the Board of Professional Engineers to take disciplinary action against a licensee found guilty of negligence in the practice of engineering. Negligence is defined by the Board in Rule 21H- 19.01(3), Florida Administrative Code, as the failure by a professional engineer to utilize due care in performing in an engineering capacity or failure to have due regard for acceptable standards of engineering principles.

    
    

12. In proceedings of this type where an agency seeks to impose discipline upon a licensee in a manner substantially affecting the right of that licensee to practice his profession or livelihood, the Petitioner or agency must prove the allegations of its administrative complaint by clear and convincing evidence. Gans v. Department of Professional and Occupational Regulation, 390 So. 2d 107 (Fla. 3d DCA 1980); Walker v. Board of Optometry,322 So. 2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So. 2d 846 (Fla. 2d DCA 1966). That evidence must be as substantial as the consequences or penalty if the charges alleged are proven. Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981).

    
    

13. The Petitioner herein has clearly proven by clear and convincing evidence that Respondent failed to exercise due care in performing in his engineering capacity, and that he failed to have due care for acceptable standards of engineering principles and practices in preparation of the subject permit drawings which he signed, sealed and acknowledged that he prepared.

    These drawings for the Westwind Villas project exhibit numerous inconsistencies, inadequacies of design and the lack of clear depiction by the designer of his intentions as to what the building contractor was to perform in properly executing the design. Therefore, the Respondent clearly acted in violation of the above legal authority in designing the permit drawings in a negligent manner.

14. In view of the conclusion that the Respondent performed in a negligent manner in violation of the above authority, consideration must be given to an appropriate penalty. The Respondent has a prior disciplinary history with the Petitioner. As shown by Petitioner's Exhibit 1, the Respondent's license to practice engineering has been suspended twice in the past seven years. In 1977 the Respondent's license was suspended for one year for signing and sealing plans which be had not prepared, and which were executed outside his own area of expertise. Again in 1978 his license was suspended for two years for signing and sealing plans which were not prepared by him and which were outside his area of expertise. The Petitioner herein has clearly established that the Respondent's engineering practice has again failed to comply with the statutory and regulatory requirements and thus a substantial penalty is warranted.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that a Final Order be entered by the Board of Professional Engineers suspending the license of Clarence Kimball, the Respondent herein, for a period of four years, provided however, that if, within one year from the date of such final order, the Respondent, through enrollment and successful completion of appropriate continuing engineering educational courses, can establish that his engineering skills have been remediated and rehabilitated, then the remaining three years of suspension should be abated and his licensure reinstated to its former status.

DONE and ENTERED this 27th day of June, 1984, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32391

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 28th day of June, 1984.

ENDNOTE

1/ Rule 21H-19.01(4), F.A.C., was erroneously cited in paragraph 11 of the amended administrative complaint. The cite should have been Rule 21H-19.01(3),

F.A.C. The error is deemed harmless in that Petitioner quoted the entire contents of Rule 21H-19.01(3), F.A.C., thus giving the Respondent full notice of the charges and their legal bases, for purposes of an adequate opportunity to prepare its defense.

COPIES FURNISHED:

Carol L. Gregg, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Clarence Kimball 230-A 5th Street Page Park

Fort Myers, Florida 33907

Allen R. Smith, Jr., Executive Director Board of Professional Engineers

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PROFESSIONAL ENGINEERS,

Petitioner,

CASE NO. 83-3012

vs. DPR NO. 0030811

0029805

CLARENCE KIMBALL,

Respondent.

/

FINAL ORDER

THIS CAUSE came on to be heard before the Florida Board of Professional Engineers at a regularly scheduled meeting held in Palm Beach Gardens, Florida on August 3, 1983.

Appearance for Petitioner: Carol L. Gregg, Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Appearance for Respondent: Clarence Kimball, Pro Se

230-A 5th Street, Page Park Fort Myers, Florida

ORDER ON EXCEPTIONS

Exceptions No. 2 and No. 7 are essentially allegations of prejudice against the Hearing Officer, however, no evidence has been presented to sustain such allegations and therefore these exceptions are DENIED. Exception No. 3 involves allegations relating to evidence allegedly not contained in recored, however, a review of the transaction and exhibit shows that the Hearing Officer's findings are supported by record and therefore this exception is DENIED. Exceptions Nos. 1, 5, 6 and 8 relate to the conclusion that Respondent was negligent, however, in the Board's opinion the facts found by the Hearing Officer supports such a conclusion and therefore the above mentioned exceptions are hereby DENIED. Exception Nos. 4 and 9 are statements in mitigation and not except and hereby DENIED.

ORDER

The Florida Board of Professional Engineers hereby accepts the Findings of Fact and Conclusions of Law of the Hearing Officer in the Recommended Order dated June 28, 1984. After a review of the complete record the Florida Board of Professional Engineers hereby determines that the recommended penalty determined by the Hearing Officer is too lenient in view of the gross negligent involved and in light of Respondent's two previous suspensions for practicing structural engineering when not qualified.

WHEREFORE, it is hereby

ORDERED AND ADJUDGED that based upon the foregoing facts Respondent's license to practice professional engineering in the State of Florida is hereby REVOKED.

DONE AND ORDERED this day of , 1984.

(document filed with DOAH undated)

EUGENE N. BECHAMPS, Chairman

Board of Professional Engineers

Copies furnished to:

Carol L. Gregg, Esq.

Clarence Kimball

Docket for Case No: 83-003012

Orders for Case No: 83-003012