STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PROFESSIONAL ) ENGINEERS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0096

)

L. THOMAS HUBBARD, d/b/a )

THE HUBBARD ASSOCIATION )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a public hearing was held before William R. Cave, the designated Hearing Officer of the Division of Administrative Hearing, on October

4 and 12, 1989, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Wings S. Benton, Esquire

1020 D. Lafayette Street, Suite 205 Post Office Box 5676

Tallahassee, Florida 32314-5676

For Respondent: L. Thomas Hubbard, pro se

THA Building

3110 Spring Glen Road Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

Whether, under the facts and circumstances of this case, Respondent's license to practice engineering in the State of Florida, should be revoked, suspended, or otherwise disciplined.

PRELIMINARY STATEMENT

By an Administrative Complaint dated January 20, 1987 and filed with the Division of Administrative Hearings on January 6, 1989, Petitioner seeks to revoke, suspend or otherwise discipline Respondent's license to practice engineering in the State of Florida. As grounds therefor, it is alleged that Respondent was negligent in the practice of engineering in preparing, signing and sealing and submitting the plans and specifications as "completed" for the proposed City of Macclenny Wastewater Treatment Water Improvement Plan and thereby violated Section 471.033(1)(g), Florida Statutes, which prohibits negligence in the practice of engineering.

In support of its charges, Petitioner presented the testimony of John Sowerby, P.E., David W. Wolfe, L. Thomas Hubbard, P.E., Donald J. Smally, P.E.,

D. C. Driver, P.E., Thomas Schanze, P.E., and F. Stinnes Jordan, Jr., P.E. (The testimony of Sowerby, Wolfe and Hubbard was presented by deposition only.) Petitioner's exhibits nos. 1 through 32 were received in evidence. Respondent did not testify on his own behalf, nor did he present the testimony of any witnesses. Respondent's exhibit nos. 1 through 8 and 13 were received in evidence. Joint exhibit no. 1 was received in evidence.

A transcript of this proceeding was filed on October 31, 1989, and at the parties' joint request, an extension of time until November 30, 1989 for filing their proposed findings of fact and conclusions of law was granted.

Consequently, the parties waived the requirement Rule 28-5.402, Florida Administrative Code, that a Recommended Order be filed within thirty (30) days of the transcript being filed as allowed by Rule 221-6.031(2), Florida Administrative Code. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, Respondent, L. Thomas Hubbard d/b/a The Hubbard Association, was licensed to practice professional engineering in the State of Florida, having been issued license number PE 006634 on August 17, 1962. Certificate of authorization number EB0003297 was issued to the firm, The Hubbard Association, Inc., on September 25, 1981.

   
   

2. In March 1986, Respondent prepared a set of plans for the proposed City of Macclenny Wastewater Treatment Works Improvement Program, Sewage Treatment Facility ("Macclenny project"), and one volume of "Contract Documents and Specifications" ("specifications"), which were submitted to the State of Florida Department of Environmental Regulation, Bureau of Wastewater Management and Grants (Bureau) on or about April 24, 1986.

   
   

3. All wastewater treatment plans designs must go to the DER for approval prior to construction, and if a public entity wants grant funding for its wastewater treatment facility, the project must be reviewed and approved by the Bureau (now called Bureau of Local Government and Waste Water Financial Assistance) which administers State grant programs for wastewater treatment facilities.

   
   

4. The Bureau reviews grant project plans and specifications to ensure that they: (a) comply with administrative requirements of the grants programs;

   (b) comply with minimum Federal and/or State technical standards for wastewater facilities; (c) are suitable for bidding; and (d) present a constructible project.

   
   

5. The plans for the Macclenny project depict an existing treatment facility, a new clarifier to improve the removal of solids (an expansion of about 130,000 gallons per day in treatment capacity), and a new effluent pumping station to pump to an overland flow field (field) through a force main pipeline to spray risers. The risers would spray the water laterally across the field. Water would collect in a central collection ditch, and run through a final chlorine contact chamber prior to discharge in Turkey Creek. A new agricultural

   building for equipment storage, and a new holding pond, which is an off-line pond for storage of inadequately treated water, are also depicted.

   
   

6. The field in the Macclenny project is roughly 24 acres and is located in a large area between the chlorine contact chamber and the holding pond.

   
   

7. The field in this system has 5 cells. A cell is an area of land that can be independently controlled to allow loading/resting cycles in the treatment process. Each cell in a given field should be as near equal in size as possible to provide for equal treatment of the wastewater during the loading/resting cycles.

   
   

8. Loading/resting cycles allows a cell within the field to "rest" (no effluent being pumped on to that cell) so maintenance mowing or harvesting can be accomplished and to "load" the other cells to revitalize the bacteria that renews the treatment process. "Load" means to apply the effluent or treated wastewater from the existing facility to the field. Generally, forty percent of the field would be loaded with wastewater at any one time.

   
   

9. On December 9, 1985, the Bureau had a predesign conference with Respondent in Macclenny to discuss design items. No plans or specifications for the Macclenny project had been submitted at that time, nor were they submitted at this conference.

   
   

10. On February 18, 1986, an in-progress design review was held at Macclenny, with the Bureau staff available to answer Respondent's questions.

    
    

11. On March 5, 1986, another in-progress design review meeting was held in Macclenny, with the Bureau staff present, at which time the plans were "fifty percent" (50%) complete. The unsigned and unsealed plans were given to the Bureau for a preliminary review.

    
    

12. On March 25, 1986, the Bureau issued a few preliminary comments on the 50% completed plans and specifications. The purpose of the 50% complete review is to help the design engineer complete his plans and specifications.

    
    

13. On March 31, 1986, Respondent transmitted to the Bureau a set of plans for the proposed Macclenny project. Respondent's transmittal letter, which the Bureau received with the plans on April 11, 1986, stated that "completed plans" were being transmitted.

    
    

14. On April 21, 1986, Respondent transmitted to the bureau an additional set of the same plans for the Macclenny project, which Respondent again referred to as "completed plans" on his transmittal letter form which were received by Bureau on April 24, 1986. This transmittal also included specifications, a design data check list, design calculations, cost estimate, and plan of operation. The plans in this submittal are referred to as "the plans."

    
    

15. It was Respondent's understanding that signing and sealing a set of engineering drawings signified a legal obligation that if someone takes the plans and builds a project it will work. Respondent's signature and seal are on the first sheet of the set of plans which was in the April 1986 submittal but not on the specifications. The plans were prepared, signed, sealed and submitted to the Bureau for review by Respondent. Respondent did not place any conditional language or qualification on the plans or write a letter advising the Bureau that the plans were not complete. It was Respondent's understanding that the Bureau would not review a set of plans unless they were signed and

    sealed, notwithstanding the completeness of the plans. Respondent did not consider the plans as completed, notwithstanding that he had signed, sealed and submitted them to Petitioner as "completed". It was Respondent's understanding that the plans were being submitted for review only, not complete for construction.

    
    

16. An engineer may get answers from the Bureau without submitting plans that are signed and sealed as completed, such as the predesign conference or 50% review that occurred in this case. The Bureau considers plans that are signed, sealed and submitted as "completed" for review to be 100% complete and ready to bid.

    
    

17. The Bureau considered the plans and specifications which Respondent submitted on April 24, 1986 as being final, complete plans and specifications for final review by the Bureau.

    
    

18. The Bureau reviewed the plans assuming them to be complete and followed normal procedures for reviewing a complete set of plans and specifications.

    
    

19. On June 19, 1989, the Bureau issued 52 written comments based on its review of the plans and specifications it had received in the April 24, 1986 submittal from Respondent.

    
    

20. The plans and specifications were submitted to the Department of General Services (DGS) by the Bureau for a review and opinion because the Bureau was concerned about the structural design. DGS responded to this request through Jim Berkstresser, P.E. on June 25, 1986.

    
    

21. By cover letter dated July 18, 1989, Respondent filed written responses to the Bureau's 52 comments.

    
    

22. The Bureau did not approve Respondent's plans and specifications for the Macclenny project submitted on April 24, 1986.

    
    

23. On September 5, 1986, Respondent resubmitted plans in response to the Bureau's 52 comments. These plans had the same configuration as the April submittal regarding the overland flow treatment.

    
    

24. On September 29, 1986, Respondent met with David Wolfe to discuss the field configuration for the proposed overland flow system and other outstanding issues related to the revised contract documents. The principal concerns were non- uniform flow and significant erosion potential. Respondent's plans did not follow accepted design criteria. At this meeting field configurations were discussed, as well as guidelines to be followed in design of the overland flow field, and a general field layout were developed.

    
    

25. Respondent submitted another set of plans which the Bureau received on October 30, 1986, and that set was approved and stamped accepted by DER-BWMG on December 22, 1986. All sheets in the approved set are dated August 20, 1986, with the exception of the cover sheet on which Respondent failed to date his seal and signature, and sheets G-6 and G-7 which are dated October 24, 1986. Respondent signed and sealed the cover sheet and sheet G-7 of the approved set of plans, but did not seal any other sheets in the approved set of plans.

26. A signature and seal on a set of plans indicates that the plans were prepared by, or under the direct supervision of the person signing and sealing them, and that the plans are complete and depict a project that will perform its intended function.

    
    

27. A signature and seal on a set of plans means the engineer assures that the design is his design and that the plans and specifications are ready to be bid for construction. The design should contain criteria and information significant to ensure the project will work.

    
    

28. Sheet flow is the primary treatment mode in an overland flow system. Sheet flow is where a thin layer of water is induced to flow in a very controlled atmosphere across a length of land that is functioning very similarly to a trickling filter.

    
    

29. The acceptable range of slope of an overland flow system is 2% to 8% with the best results obtained in the lower range because of a longer "residence time". "Residence time" is the amount time the wastewater is on the field for treatment.

    
    

30. The slopes must be even and uniform to maintain a constant velocity so as to minimize the potential for erosion and to maintain a constant depth of water throughout the filed so as to maximize the treatment.

    
    

31. Cross slopes should be minimized and topographic lines should be as close to parallel as possible on the field.

    
    

32. The plans for the Macclenny project shows: (a) slopes ranging from less than 2% up to 6%; (b) multiple compound slopes across the field and; (c) topographic lines that are not parallel. The specifications for the field do not set out the acceptable tolerances on the slopes or the acceptable level of compaction of the field for the contractor who is to construct the field and; therefore, lacks control over the final product.

    
    

33. Contours in an overland flow field are important, and while it is desirable for them to be on 1-foot intervals, contours at intervals of 2 feet are acceptable provided the plans and specifications address what happens between the contours. Respondent's plans and specifications show contours at intervals of 2 feet but do not address what happens between the contours.

    
    

34. The plans of the facilities that were approved prior to the submittal of any plans by Respondent called for a 2- 3 week loading/resting cycle.

    
    

35. The standard practice is to have all cells within an overland flow field to be of equal size so that the area to be loaded at any given period of time is the same size.

    
    

36. The cells in the overland flow field in the Macclenny project as depicted by the plans are not of equal size, and if operated on a 2-3 week loading/resting cycle would not provide a consistent amount of treatment and thereby result in varying levels of treatment of the effluent.

    
    

37. It is standard practice to provide performance specifications for seeding the field with the primary grass cover and for overseeding when necessary to prevent wind and water erosion. There were no performance specifications in the plans and specifications on the Macclenny project submitted by the Respondent.

38. Agricultural equipment is an integral part of the overland flow field system and has a direct bearing on whether the system will function over the long run. Specifications for agricultural equipment are necessary to determine if the system will work properly. There were no specifications for agricultural equipment submitted by the Respondent in the plans.

    
    

39. It is standard practice to furnish spray nozzle specifications, such as nozzle size, degree of fanning, characteristics under varying pressures and how much water will be discharged by the nozzle, in a set of plans and specifications for an overland flow field. Respondent's specifications for the Macclenny project did not contain the necessary specifications for the spray nozzles.

    
    

40. Compacting is a standard practice, and it is standard practice to show compaction requirements on plans or specifications. The usual practice is to investigate the soil and specify compaction, usually based on a foundation report by a geo-technical engineer, showing the safe beading capacity of the soil in what condition, with recommendations for compaction.

    
    

41. The Respondent's specifications do not call for compaction of the soil under the clarifier slab. However, the Respondent's specifications do call for compaction in the holding pond and situations where an area is over-excavated and backfilled. Should the area under the clarifier slab be over- excavated and backfilled, then compaction is covered in the specifications but compaction would not be covered unless this occurs. Therefore, since the weight of the slab is carried by the soil beneath it, specifications for compaction should have been included in Respondent's specifications for any situation.

    
    

42. Changes in temperature causes concrete to expand or contract which may result in cracking. Placement of a concrete slab may result in the slab bending which may result in cracking. Therefore, reinforcing a concrete slab is required to maintain the slab's integrity. The thickness of a concrete slab will determine the distribution of the reinforcing so that cracking is minimized.

    
    

43. The clarifier slab in the Macclenny project is depicted as being 12 inches thick and shows number 6 bar reinforcing on 6 inch centers in the top of the slab but no reinforcing in the bottom of the slab. Failure to require reinforcing in the bottom of the slab could result in the slab cracking due to significant changes in temperature and soft spots in the soil beneath the slab. Failure to place reinforcing in the bottom as well as in the top of the slab is not in accordance with standards of the code of the American Concrete Institute (ACI), revised in 1983, and is a structural weakness.

    
    

44. The chlorine contact chamber as detailed on sheets 5-6 and 5-7 is like a rectangular concrete box beneath the earth where the earth is within a few inches of the top of the walls. The walls are vertically reinforced with number

    4 bars on 12 inch centers placed in the center of the 8 inch thick wall. When the tank is empty the reinforcing bars will be approximately 160 per cent overstressed from the active pressure of the earth. Additional reinforcing is needed in the walls to meet ACI standards.

    
    

45. There are deficiencies in the vertical wall reinforcing of the chlorine contact chamber as detailed on sheets 5-6 and 5-7 of the Plans.

46. On sheets 5-3, 5-4 and 5-7 of the plans, reinforcement through the construction joints is incorrectly detailed to assure that cracking of the concrete will not occur. Construction joints occur between different pours of concrete, such as where the walls meet the top of the bottom slab.

    
    

47. The concrete bottom of the holding pond as detailed in sheet 5-8 of the Plans is large enough to require expansion joints to prevent cracking as the slab expands and contracts due to changes in the weather, yet no expansion joints are shown for the slab as detailed on sheet 5-8 of the plans.

    
    

48. Neither the collection ditches nor the spray riser bases as detailed on the plans show any reinforcing to maintain the integrity of the concrete. While this is not a major structural weakness, it indicates a failure to comply with standard structural engineering practices.

    
    

49. Although the plans call for relocation of an existing drainage ditch, the Respondent failed to consult DER regarding the permitting of such drainage ditch.

    
    

50. A detention time of 30 minutes is required to properly disinfect wastewater and is-basic knowledge for all civil engineers, yet the plans called for only a fifteen minute detention time.

    
    

51. It is standard engineering practice to provide flood level elevations on the site plans. Respondent failed to provide flood level elevations for the Macclenny facility site plans.

    
    

52. The plans failed to: (a) provide elevations for high water alarm and pump off settings; (b) provide specifications for flume liner on sheet M-4; (c) show how to close an existing outlet on the chlorine contact chamber; (d) show where an effluent pump station was to be located; (e) show pressure relief valve locations and; (f) indicate quantities for purpose of contract bidding.

    
    

53. The specifications list equipment and work items, such as pumping equipment, grit storage tank, case-out assembly, telescoping valve, air diffusers, portable pump, hose and couplings, that are inapplicable to the Macclenny project.

    
    

54. There are inconsistencies in the plans and specifications, such as:

    (a) the plans showing one clarifier while the specifications call for two clarifiers, (b) the plans showing a 150 pound chlorine cylinder as opposed to a 1-ton chlorine cylinder in the specifications and; (c) the plans showing the clarifier with a 38-foot diameter while the specifications calls for a clarifier with a 40-foot diameter.

    
    

55. Respondent was negligent in submitting incomplete plans to the Bureau as "completed plans" and in failing to utilize due care and failing to have due regard for acceptable standards of engineering principles, with regard to the content of those plans which he submitted as "completed plans".

    
    

    CONCLUSIONS OF LAW

    
    

56. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes (1989)

57. The Respondent is charged with violating Section 471.033(1)(g), Florida Statutes, which empowers the Board of Professional Engineers (Board) to take disciplinary action against a license found guilty of negligence in the practice of engineering. Negligence is defined by the Board in Rule 21H- 19.001(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.

    
    

58. Section 471.025(1), Florida Statutes, requires that all plans, specifications, plats or reports prepared or issued by a licensed professional engineer and being filed for public record shall be signed by the licensed professional engineer, dated and stamped with his seal. Rule 22H-23.002(2), Florida Administrative Code requires that each sheet of plans and prints required to be sealed under Chapter 471, Florida Statutes, shall be sealed, signed and dated by the licensed professional engineer in responsible charge. However, failure to fully comply with the above-cited section of the statutes and rule does not prohibit the licensed professional engineer from being charged and found guilty of negligence under Section 471.033(1)(g), Florida Statutes.

    
    

59. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

v. Department of Health and Rehabilitative Services, 348 So.2d 349 (2 DCA Fla. 1979). The Petitioner must prove all of the material allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington,

510 So.2d 191 (Fla. 1987). The Petitioner has sustained its burden.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding this case, it is, therefore,

RECOMMENDED that the Board enter a Final Order finding Respondent, L. Thomas Hubbard guilty of violating Section 471.033(1)(g), Florida Statutes, and for such violation impose an administrative fine of $1,000.00 and suspend from the practice of engineering for a period of thirty (30) days, stay the suspension and place the Respondent on probation for a period of one year under terms and conditions the Board deems appropriate.

DONE AND ENTERED this 20th day of June, 1990, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearing this 20th day of June, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0096

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case.

Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Findings of Fact 1.

2. Rejected as not being necessary to the conclusions reached in this Recommended Order.

3.-12. Adopted in Findings of Fact 2, 3, 4, 5, 6, 7, 8, 9,

10, and 11, respectively, but modified.

13. Rejected as being immaterial or irrelevant or unnecessary or subordinate.

14.-19. Adopted in Findings of Fact 12, 13, 14, 15, 16, and 17, respectively, but modified.

1. Rejected as being immaterial or irrelevant or subordinate or unnecessary.

2. Adopted in Findings of Fact 17 and 18 but modified. 22.-33. Adopted in Findings of Fact 19, 20, 21, 22, 23, 24,

24, 25, 26, 27 and 27, respectively, but modified.

34. Adopted in Findings of Fact 17 and 18, but modified. 35-37.

Rejected as being immaterial or irrelevant or unnecessary or subordinate.

38. Adopted in Findings of Fact 28 and 29, but modified. 39.-40.

Rejected as being immaterial or irrelevant or

unnecessary or subordinate, but see Findings of Fact

37 and 38.

41.-5O. Adopted in Findings of Fact 28, 32, 29 (28-31), 29,

29, 32, 30, 32 and 32, respectively, but modified.

51. Rejected as being immaterial or irrelevant or unnecessary or subordinate.

52.-53. Adopted in Findings of Fact (28-33) and 32, respectively, but modified.

54.-55. Rejected as being immaterial or irrelevant or unnecessary or subordinate.

1. Adapted in Finding of Fact 55.

2. Rejected as being immaterial or irrelevant or unnecessary or subordinate.

58.-62. Adopted generally in Findings of Fact 28-33. 63.-66. Adopted generally in Findings of Fact 34-36. 67.-72. Adopted generally in Finding of Fact 37.

73.-74. Adopted generally in Finding of Fact 38. 75.-76. Adopted generally in Finding of Fact 39.

77.-79. Adopted generally or covered in Findings of Fact 13-15 and 28-39.

80.-82 Adopted generally or covered in Findings of Fact 40- 41.

83.-90. Adopted generally or covered in Findings of Fact 42 and 43.

91.-96. Adopted generally or covered in Findings of Fact 44 and 45.

97.-104. Adopted generally or covered in Finding of Fact 46. 105.-107. Adopted generally or covered in Finding of Fact 47.

108.-109. Adopted in Finding of Fact 48.

110.-115. Adopted generally or covered in Finding of Fact 55. 116.-117. Adopted in Finding of Fact 49 and 50.

18. Rejected as being immaterial or irrelevant or unnecessary or subordinate.

119. Adopted in Finding of Fact 51. 120.-124. Adopted in Finding of Fact 52.

125. Rejected as immaterial or irrelevant or unnecessary or subordinate.

126.-127. Adopted in Finding of Fact 52.

1. Adopted in Finding of Fact 53.

2. Adopted in Finding of Fact 54.

3. Adopted in Finding of Fact 53.

4. Adopted in Finding of Fact 55.

Specific Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Findings of Fact 13-15.

   
   

2. Adopted in Finding of Fact 19 except last sentence that is rejected as being immaterial or irrelevant.

   
   

3. Rejected as being a restatement of Administrative Complaint and not a Finding of Fact but see Findings of Fact 15 and 19.

   
   

4. Rejected as being a restatement of John Sowerby's testimony and not a Finding of Fact, but see Findings of Fact 15, 17 and 18.

   
   

5. Adopted in Finding of Fact 15. 6. Restatement of David Wolfe's testimony

COPIES FURNISHED:

Rex Smith Executive Director

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Kenneth Easley, Esquire General Counsel

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0750

Wings S. Benton, Esquire

1020 D. Lafayette Street, Suite 205 Post Office Box 5676

Tallahassee, Florida 32314-5676

L. Thomas Hubbard, pro se THA Building

3110 Spring Glen Road Jacksonville, Florida 32207

Docket for Case No: 89-000096

Orders for Case No: 89-000096