STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

PROFESSIONAL ENGINEERS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4565

)

CHARLES STOKES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for hearing before P. Michael Ruff, a duly designated Hearing Officer, in Panama City, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: John O. Williams, Esquire

Lindsey & Williams, P.A. Renaissance Square

1343 Fast Tennessee Street Tallahassee, Florida 32308

For Respondent: Richard Smoak, Esquire

Sale, Smoak, Harrison, McCloy & Thompson

Post Office Drawer 1579 Tallahassee, Florida 32402

STATEMENT OF THE ISSUES

This cause concerns whether the Respondent committed certain violations of Chapter 471, Florida Statutes (1989), governing the regulation of licensure and practice of Professional engineers in the State of Florida by certain alleged negligent acts with regard to the preparation of plans for a building and alleged engagement in the practice of architecture beyond the scope of authorized engineering practice.

PRELIMINARY STATEMENT

This cause arose upon the filing of an administrative complaint against the Respondent by the Petitioner agency charging Respondent with various violations of Chapter 471, Florida Statutes (1989). The complaint charges that the Respondent prepared building plans containing negligently designed structural, electrical, and mechanical aspects for a restaurant building known as the Crab Shanty in Panama City Beach, Florida. The complaint also charges that the plans were prepared by the Respondent to include architectural aspects or work for

which he is not licensed since he is not a licensed architect, an alleged violation of Sections 471.033(l)(a) and 471.023(3), Florida Statutes (1989). It also charged that the Respondent violated these cited sections by failing sign and date his seal on the building plans. Finally, It is charged that the plans the Respondent prepared contained electrical and mechanical features which were beyond his training and expertise as an engineer and that he violated the above- cited statutory subsections in this regard as well.

The cause case on for hearing as noticed, at which the Petitioner presented the testimony of five witnesses and presented 10 exhibits which were admitted into evidence. The Respondent testified on his own behalf, and presented the testimony of two additional witnesses. Five exhibits presented by the Respondent were admitted into evidence. The proceedings concluded and a transcript thereof was ordered. The parties availed themselves of the right to submit proposed findings of fact in the form of Proposed Recommended Orders. At the conclusion of an extended briefing scheduling the proposed Recommended Orders were timely submitted and the proposed findings of fact therein have been treated in this Recommended Order and specifically ruled upon again in the Appendix attached hereto and incorporated by reference herein

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulating the practice of engineering pursuant to Section 20.30, Florida Statutes, Chapters 455 and 471, Florida Statutes, and with enforcing the licensure standards for registered professional engineers in the State of Florida. The Respondent is a licensed engineer, licensed by the State of Florida, holding license number PE 0029985. His address of record is Charles Stokes Engineering, 3000 Highway 231, North, Lynn Haven, Florida 32404.

   
   

2. In 1989, the Respondent contracted with James Carlton to prepare building plans for a restaurant known as the Crab Shanty in Panama City Beach, Florida. Numerous changes were effected in the plans, both before and during construction, such that the restaurant evolved finally as a three-story restaurant built primarily of wood with utility-pole type pilings or posts and beams for framing, including glued-laminated wood beams (glue-lam).

   
   

3. An initial set of plans (Petitioner's Exhibit 1) were submitted to the Bay County Building Official, Mr. James Pybus. While the initial 11-page plans depicted in Petitioner's Exhibit 1 lacked some detail, especially with regard to electrical, plumbing, air conditioning and mechanical aspects, the plans were later augmented by an additional 11 pages depicting some of the previously absent details and Mr. Pybus confirmed that the practice of his agency is not to require more detailed plans of such electrical, plumbing, air conditioning, or mechanical work, if it comes within the scope of the exceptions set forth in Section 471.003(2)(i), Florida Statutes (1989). Those exceptions provide that licensed subcontractor, in those fields can design the electrical, plumbing, air conditioner, or mechanical aspects of a project themselves if they have the appropriate contractor's licenses without engineering registration. Therefore, Mr. Pybus' agency does not require that engineers preparing such plans, as to these aspects of the planning work, include such details if licensed contractors for those areas of the construction project will be doing the design and installation work, which was the case in this situation. Personnel under Mr. Pybus' direction inspected the building during construction and preformed a final inspection, all of which confirmed that the construction was in accordance

   with appropriate building codes. Mr. Pybus opined that his office had reviewed the plans submitted and determined that the plans had depicted sufficient detail for construction in accordance with the applicable codes.

   
   

4. The Petitioner presented a consulting engineer, Mr. Harold Benjamin, as an expert witness. Mr. Benjamin opined that the Respondent had exceeded the limits of his engineering experience by signing and sealing plans which entailed mechanical engineering, electrical engineering, and, to some extent, the field of architecture. The Respondent, however, has worked for many years in the nuclear power industry, during which time he was actively involved in electrical, structural and mechanical engineering and design which, by this extensive experience, qualified him to sign and seal plans covering the fields of mechanical and electrical engineering. The evidence to this extent refutes the testimony of Mr. Benjamin, and it is rejected in this regard. Further, although the Respondent preformed a minor amount of architectural work in designing the building, the architectural aspects of his building design were clearly incidental to the major considerations of civil, mechanical, structural, and electrical engineering. Even Mr. Benjamin, the Petitioner's witness, conceded that the architectural aspect of the design work was incidental to the overall plan and design work involved and was on the order of approximately ten percent of the Respondent's work on the project.

   
   

5. Mr. Benjamin testified that he observed certain omissions on the plans contained in Petitioner's Exhibit 1. Those omissions involve not showing the proper type of support for some stairs, a foundation plan not being labeled, wall sections not being properly shown, and an absence of an "electrical legend" on the face of the plans. He opined that heating and air conditioning plans were unclear as to duct size, air delivery and quantities to various rooms. Mr. Benjamin acknowledged, however, that he was basing this testimony on only the plans depicted in Petitioner's Exhibit 1, which consisted of the first 11 pages and it was shown that this was not the complete set of plans actually drawn and ultimately filed with the building department by the Respondent, which consisted instead of a total of 22 pages which showed much more detail then Mr. Benjamin had reviewed and upon which he based his testimony. Mr. Benjamin only saw the remaining portion of the plans in question very briefly shortly prior to hearing and acknowledged that many of the omissions had been supplied on the additional plan sheets. Mr. Benjamin also acknowledged in his testimony that flaws in the design alleged by a Mr. Coleman, a "complaining architect" had not been proven in his view and, therefore, the Respondent was not negligent in his design.

   Upon redirect examination, Mr. Benjamin acknowledged that he only opined that the Respondent was negligent in terms of not consulting with qualified electrical and mechanical engineers with regard to the project because of his previously discussed opinion that the Respondent's engineering experience or expertise did not extend to electrical and mechanical engineering. This opinion, however, has been refuted as delineated above.

   
   

6. Concerning the structural design aspects of the building and plans, in view of Mr. Benjamin's letter report to the Department of June 12, 1989, coupled with Mr. Benjamin's testimony that he did not do a complete review of the plans and did not examine the building itself, Mr. Benjamin's testimony has not established any negligence on the part of the Respondent. It affirmatively establishes that any architectural practice the Respondent may have engaged in was only incidental to his engineering design work for the project as a whole.

   
   

7. Further, the testimony of Mr. Benjamin to the effect that the air conditioning system appeared to him inadequate to handle the peak load, as generated by restaurant occupancy of nearly 100 people and the restaurant

   kitchen, it was demonstrated at page 41 of the transcript that Mr. Benjamin had not observed the restaurant and kitchen space at the building in question and was not aware of what the actual occupancy of the restaurant was. Therefore, he is not deemed competent to express expert opinions concerning the adequacy of the air conditioning equipment and design.

   
   

8. The Petitioner also presented the testimony of Mr. Berton Hufsey, a mechanical engineer. He was accepted as an expert witness in this field. Mr. Hufsey initially expressed criticism about certain plumbing and HVAC (heating, ventilating and air conditioning) aspects of the plans. Mr. Hufsey acknowledged, however, that because his practice is in the Miami, Florida, area, he was not familiar with the extent of detail customarily shown on engineering plans in the Bay County area and, thus, was not familiar with the professional practice standards in the Bay County area in that regard. Mr. Hufsey initially opined that the grease trap for the restaurant was inadequately sized and that all kitchen and bathroom waste were routed though the grease trap; that the toilet vent was a "dry vent" and that a wet vent, which washes the bottom of the vent pipe, should have been employed. He criticized the absence of details of the water heater and the kitchen ventilating system not being shown to be coordinated and balanced, but acknowledged that two fans were shown and appeared to balance. He also opined that the plans did not show an innerconnect to shut off heat producing equipment when the fire extinguisher system was operating, that exhaust fans or windows were not shown for the bathroom/toilet area, that the gas furnace was not shown to have a flue connection, and that the HVAC system was not shown to have a condensate water drain.

   
   

9. Mr. Hufsey acknowledged in his testimony, however, that he thought, based upon this opinion and review of the initial set of the 11-page plans he had reviewed in making his recommendation to the Department, that the complaint had some validity but he would not go so far as to testify that negligence had occurred. Then, when confronted in his testimony by the as-built" plans, which he only saw on the day of the hearing, Mr. Hufsey acknowledged that the grease trap was properly designed, that the kitchen supply and exhaust fans were also appropriately detailed on the as-built plans, as well as the fire sprinkler system, and the air conditioning system. In summary, after reviewing the actual as-built, 22-page set of numbered and sealed plan sheets prepared by the Respondent, Mr. Hufsey acknowledged that the omissions and lack of detail noted on the first 11-page set of "rough plans" had been corrected with the exception of the "dry vent" for a toilet. Mr. Hufsey, however, acknowledged in regard to this that an experienced, qualified plumbing contractor would know the correct type of vent to install for the toilet, even if it was not actually depicted on the plans, and acknowledged that professional engineering practice in Florida provides that certain types of jobs can be designed and built by the licensed trade contractors such as plumbers, electrical contractors and mechanical contractors and that these types of trade contractors can design and build the plumbing, heating and air conditioning, and electrical aspects of a job such as this without having the design actually placed in the plans by the licensed registered engineer. See the exception contained in Section 471.003(2)(i), Florida statues (1989).

   
   

10. Moreover, the Respondent, in his plans, affirmatively indicated that the sprinkler system had to take priority in its design and location over the mechanical, heating, air conditioning equipment and duct work, as well as the plumbing piping. This was a safety feature in order to ensure that the sprinkler system had effective coverage in the event of fire. Because of this safety feature, noted on the plans by the Respondent engineer, there necessarily had to be some degree of flexibility for installing the HVAC, the duct work~ and

    the plumbing work for those pertinent, licensed trade contractors. This was an additional appropriate reason why specific detail of the plumbing, electrical, and mechanical HVAC aspects of the job were not firmly and finally designed by the Respondent, because of the necessarily precise location of the sprinkler system shown on page 15 of the as-built plans. Thus, because of the exception allowed in the statute for design of HVAC, plumbing, and electrical work by the appropriate, licensed trade contractors and because of the priority the Respondent himself noted on the plans for the sprinkler system design and installation, it has not been shown that the Respondent was negligent in regard to the lack of detail on the plans for HVAC, electrical and plumbing design.

    Further, Mr. Hufsey acknowledged in his testimony concerning the alleged water heater detail deficiency, the lack of depiction of the air conditioning condensate drain, the furnace flue, and air supply; that experienced, licensed trade contractors in those relevant trades would be able to design and build those features into the building appropriately within the exception allowing them to do so at Section 471.003(2)(i), Florida Statutes.

    
    

11. Mr. Garcia testified as an expert in the field of electrical engineering. Mr. Garcia stated that the plans submitted for the permit were deficient as to electrical items, thereby demonstrating negligence. Specifically, Mr. Garcia found that the initially submitted plans depicted no "panel scales"; no electrical risers; no load analysis; no specifications for lighting fixtures; insufficient detail to show compliance with the national electrical code and the energy code; that emergency lighting did not comply with the national electrical code; that no electrical legends were depicted; that circuits were not properly identified for lighting fixtures; that no schedule specifying light fixtures were shown; and that stairs were not shown to have the required emergency lighting. Mr. Garcia acknowledged in his testimony that the later, as-built plans depicted in Petitioner's Exhibit 8 showed that many of these items were corrected, although not all of them. He acknowledged, however, that on a project of this size that a licensed electrical contractor could design and build the required electrical items, equipment, and service, including the items he found not sufficiently depicted on the plans, without the services of a licensed engineer for the design, in accordance with the exception provided at Section 477.033(2)(i), Florida Statutes. Mr. Garcia testified, however, that a prudent engineer, if he omitted such detail from his plans, should make a notation on the plans to that effect to indicate that that design detail was to be provided by the licensed electrical contractor performing that aspect of the job. The Respondent failed to make this notation.

    
    

12. The Petitioner presented the testimony of James Owen Power, a structural engineer accepted as an expert witness in that engineering field.

    Mr. Power expressed criticism concerning the Respondent's plans as demonstrating negligence in the practice of engineering in the following particulars:

    
    

    1. Sheet 2 of Exhibit 1 shows a roof over the third floor, sheet 3 shows no roof.

    2. The details on sheet 5 of Petitioner's Exhibit 1 related to the girder layout indicated glue laminated wood beams with insufficient notes to guide the contractor.

    3. The stairs of the south elevation were shown in two locations and did not show proper detail to show attachment to the building, nor that they met life safety standards.

    4. Sheet 5 of Petitioner's Exhibit 1, according to Mr. Power, shows a connection of the glued laminated wood member to a girder which was structurally inadequate because of the type and manner of bolting.

    5. The plans contained in Petitioner's Exhibit 1 used to obtain the building permit were somewhat confusing because certain irrelevant notes were written on the right hand side of sheet 1 of those plans.

    6. The piling construction notes, according to Mr. Power, called for 8 X 8 square pilings or 8 inch round marine treated pilings, but the drawing showed 12 inch round pilings.

    7. Sheet 6 of Petitioner's Exhibit 1 is confusing in that it is unclear whether it should be applied to the second or third floor, or just one of those two floors because the sheet specifies metal stud walls but does not indicate the gauge or size of the metal studs, nor did Mr. Power find the details sufficient to show how the walls should be framed at the top under the second floor trusses.

    8. Petitioner's Exhibit 1 allegedly shows insufficient detail with regarding to flashing and, finally, Mr. Power opined that there was not proper specification with regard to attachment of sheet metal to an overhang.

       
       

13. Mr. Power's testimony was directed to Petitioner's Exhibit 1, the initial preliminary plans submitted for purposes of obtaining the building permit. Although building permit submittal plans should depict sufficient detail to show that a safely constructed building will result which will comply with appropriate building codes, it is not expected, as Mr. Pybus demonstrated, that all details be shown, especially in this case where certain planning details are appropriately and legally left to the designing and building performance of licensed trade contractors for the electrical, plumbing, and HVAC aspects of the building. Mr. Power's testimony does not demonstrate that the plans in Petitioner's Exhibit 1 would not have resulted in a safely constructed building which could comply with the building codes. In any event, the as-built set of plans drawn and designed by the Respondent (Petitioner's Exhibit 8), coupled with Respondent's unrefuted testimony, shows that these alleged deficiencies did not exist or had been adequately depicted in the as-built plans. The alleged improper connection of the glue lamented wood members to girders was actually demonstrated by the Respondent's testimony to be structurally adequate and in accordance with good, safe engineering practices. Concerning the alleged life safety standard violations regarding the stairs, Mr. Power acknowledged he had no architectural expertise, and was not qualified to render such an opinion, and the Respondent's case in chief shows that there was a change order regarding the stairs which legitimately accounts for the two different locations shown. Further, concerning the piling size complaint of Mr. Power, the Respondent demonstrated that the 8 inch sectional dimension of the pilings was the minimum diameter specification, which becomes obvious when it is taken into account that the drawing showed 12 inch round pilings. Accordingly this aspect of Mr. Power's criticism is invalid and is not indicative of

    negligence in the practice of engineering. The matters concerning the gauge or size of metal stud walls, the flashing, the depiction of roofs for the second and third floors, and the attachment of sheet metal to the overhang involved structural changes made during the course of construction as the result of legitimate agreements between the Respondent and the owner, as well as apparent deficiencies which were actually corrected on the final set of signed and sealed plans. Accordingly, these criticisms from Mr. Power do not reflect inadequacies or negligence in the practice of engineering in this regard either. Further, although Mr. Power expressed criticism concerning non- compliance with the statutory requirement for the drawings to be signed and sealed by the Respondent engineer, on cross examination he acknowledged that the Respondent had- in fact, attached to his final plans a cover letter and an index which had been signed and sealed with the appropriate raised seal and that each sheet of the drawing incorporated under that cover letter by reference was, in turn, appropriately identified by a stamped, red ink seal. Thus, the final plans were appropriately signed and sealed. Finally, it should be pointed out that none of the expert witnesses presented by the Petitioner had viewed the structure involved and none was able to testify competently that the structure had not, in fact, been finally designed, in the final plans, and constructed in a manner which would result in an improperly constructed, unsafe building.

    
    

14. The Respondent presented the testimony of Mr. James Carlton, one of the owners of the building. Mr. Carlton established that he retained the Respondent to perform engineering services and that he did not want or need an architect because he had already conceived the architectural design of the building based upon his experience in the restaurant business. Mr. Carlton established that he was satisfied with the services provided by the Respondent and described his close cooperation with him and his supervision of the construction as very satisfactory. In fact, Mr. Carlton described the Respondent as working late at night seven days a week and always readily responding if changes were needed or desired by the owner or the contractors. Mr. Carlton described in detail the structural soundness of the building, even when subjected to 80 MPH winds and the weight and movement of crowds involving hundreds of people, which corroborated the Respondent's own testimony regarding the substantial structural soundness of the resulting building.

    
    

15. The Respondent also presented the testimony of Henry Skipper, the contractor who actually constructed the building. Mr. Skipper confirmed that the plans provided adequate guidance for construction and for the work which was to be actually performed by licensed subcontractors in the trades of mechanical, electrical, plumbing, and HVAC. Mr. Skipper corroborated the fact that the Respondent was readily available to assist the contractors and subcontractors and the owner and to ensure that the building was properly constructed at all stages. Mr. Skipper found that the Respondent's plans contained the appropriate amount of detail treatment which he was accustomed to encountering in the preparation and use of building plans in the Bay County construction industry over a period of many years. Mr. Skipper's testimony appearing at pages 110 through 120 of the transcript specifically refutes the claims by Petitioner's witnesses concerning the adequacy of the design or construction of the stairs, the exterior walls, the glue--lam beams, the metal roofing and sheet metal detail, the perimeter walls, and the electrical, mechanical, plumbing, and HVAC aspects of the project. His testimony is accepted.

    
    

16. Respondent testified in his own behalf and described his extensive experience as a professional engineer. In refuting the Petitioner's claims that he had worked outside his training and experience in terms of mechanical and electrical engineering, he established that he has many years of experience,

    derived from the nuclear power industry primarily, as well as to some extent in the sanitary sewer engineering design field by which he acquired extensive expertise in electrical mechanical, as well as structural engineering design.

    He is a licensed professional engineer in Alabama, Georgia, and Florida, and has been certified by the State of Florida as a Designated, Threshold Engineering Inspector. He has been approved for state employment as a professional

    engineer-mechanical III and a professional engineer-electrical I. His testimony appearing at pages 147-160 of the transcript together with the testimony of Mr. Skipper, the contractor, and the owner, Mr. Carlton, refutes the Petitioner's criticism concerning his design of the HVAC, plumbing, electrical, and structural aspects of the bui1ding. The Respondent established, in fact, that his design of the laminated beams and the method of connection of them, in fact, exceeded the recognized engineering and structural design requirements.

    Although various of the Petitioner's witnesses, as well as the Respondent in his testimony, established that sufficient detail concerning the mechanical, electrical, HVAC, and plumbing portions of the project were depicted on the plans so that appropriately licensed trade contractors practicing in those fields of contracting could do the final design and installation of those aspects of the project, the Respondent did not refute the showing by the Petitioner's witnesses that, as to the electrical equipment and service design portion of the project, the Respondent failed to properly note on his plans that flexibility for appropriate design and installation of the electrical segment of the project was being left to the licensed electrical subcontractor. In this regard then, it was established that the Respondent was negligent in the practice of engineering. It was not established that the Respondent engaged in any fraud or misconduct in the practice of engineering however, nor that he practiced architecture beyond the purview of his engineering licensure, in more than an incidental way.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. The Petitioner has the burden of proving the allegations of the administrative compliant by clear and convincing evidence in accordance with the opinion in Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)

    
    

19. Section 471.025(1) and (3), Florida Statutes, provide in pertinent part as follows:

    
    

    "(1) The board shall prescribe, by rule, a form of seal to be used by registrants

    holding valid certificates of registration. Each registrant shall obtain an impression- type metal seal in the form aforesaid. All plans, specifications, plats, or reports prepared or issued by the registrant and being filed for public record shall be signed by the registrant, dated, and stamped with said seal. Such signature, date, and seal shall be evidence of the authenticity of that to which they are affixed. It is unlawful for any person to stamp or seal any document

    with a seal after his certificate of registration has expired or been revoked or suspended, unless reinstated or reissued.,

    (3) No registrant shall affix or permit to be affixed his seal or name to any plan, specification, drawing, or other document which depicts work which he is not licensed

    to perform or which is beyond his profession or specialty therein."

    
    

20. Subsection 471.033(1) and (2), Florida Statutes, provides in pertinent part as follows:

    
    

    "(1) The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:

    (a) Violating any provision of S. 471.031, or s. 455.227(1) or any other provision of this chapter...

    (g) Fraud or deceit, negligence, incompetence, or misconduct, in the practice of engineering...

    (2) The board shall specify, by rule, what acts or omissions constitute a violation of subsection (1)."

    
    

21. Subsections (3) and (5) of Rule 21H-19.001," Florida Administrative Code, read as follows, in pertinent part:

    
    

    "(3)(a) A professional engineer shall not be negligent in the practice of engineering. The term negligence set forth in 471.033(1)(g), Florida Statutes, is herein defined as the failure by a professional engineer to utilize due care in preforming in an engineering capacity or failing to have due regard for acceptable standards of engineering principles. Professional engineers shall approve and sea1 only those documents that conform to acceptable engineering standards and safeguard the life, health, property and welfare of the public.

    (5) A professional engineer shall not commit misconduct in the practice of engineering. Misconduct in the practice of engineering as set forth in 471.033(1)(g), Florida Statutes, shall include, but not be limited to:...

    (d) Affixing a signature or seal. to any engineering plan of (or) document in a subject matter over which a professional engineer lacks competence because of inadequate training or experience;"

22. Section 21H-19.001(3)(b) specifically adopts a publication, "Statements on Responsibilities of Professional Engineers, Second Edition," as published and adopted by the Board of Professional Engineers. The pertinent portions thereof state as follows:

    
    

    "2. Structural construction documents shall indicate provisions for support, bearing,

    cross and lateral bracing, bracing toil transfer member buckling (including erection) forces to the structure, and for all boarding and anchorage required to resist uplift and lateral forces.

    3. Structural submittals shall include component details and system layout drawings. Such submittals shall identify the project and list loading and other criteria.

    Drawings shall identify and locate all components and shall specify member sizes, bracing, anchorage, connections and all other necessary fabrication and erection information."

    
    

    The Petitioner's various experts testified that the. plans submitted to the building department should be complete enough so it is reasonably certain that a safe structure can be constructed therefrom without the necessity of consulting some other source. Although there were certain omissions and deficiencies in the plans submitted for the purpose of obtaining the building permit, the testimony of Mr. Pybus shows that, together with that of the Respondent and Mr. Skipper, the contractor, that it was reasonably certain that a safe structure could be constructed therefrom. In any event, however, the final, as-built plans, as explained by the testimony of the Respondent's witnesses, and to some extent acknowledged by the Petitioner's witnesses, establish that a safe structure could be constructed there from. Most of the omissions and deficiencies noted by Petitioner's witnesses, who essentially described the original plan submission of Petitioner's Exhibit 1 rather than the final complete plans were corrected. It is especially noteworthy that the purportedly dangerous condition regarding the allegedly inadequate or improper connection of the glue-laminated girders and beams was specifically shown by the Respondent's testimony and evidence to have been appropriately connected in accordance with; safe, acceptable engineering practices, with the result that a safe, strong building resulted.

    
    

23. In order to resolve the remaining issues with regard to the incompleteness of the plans, however, it is necessary to consider subsection 471.003(2)(i). This provision exempts persons from registering as engineers, pursuant to Section 471.001 through Section 471.037, Florida Statutes, who are preforming certain electrical, plumbing, air condition, or mechanical contracting portions of a job, even though it includes what might otherwise be described as engineering design, as well as fabrication, under specific circumstances set forth in that subsection. Section 471.033(1)(g), Florida Statutes (1989), and Section 21H-19.001, Florida Administrative Code prohibit a professional engineer from being negligent or incompetent in the practice of engineering. The issue, therefore, concerns whether, if certain licensed contractors are allowed to perform functions which actually involve the engineering discipline involving design of electrical plumbing, air conditioning, or mechanical systems for a building pursuant to the exceptions contained in subsection 471.003(2)(i), can an engineer simply prepare and submit

    a set of plans to a building department which omits certain specifications concerning which electrical, plumbing, air conditioning, and mechanical contractors can design and build.

    
    

24. The testimony of the Petitioner's experts shows that an engineer who undertakes a project assumes a duty to perform at a minimal standard of care recognized by his profession, which is that the items depicted on his plans are correct, that notations contained thereon are relevant and accurate, and that if the engineer is relying on others, such as licensed contractors in the above disciplines to provide certain planing details, that appropriate notation to that effect should be made on the plans. It should be clear on the plans what portion of the building design the engineer is responsible for. In the instant situation, the Respondent engineer did note on his plane that, because of the priority of the design, location and installation of the fire protection sprinkler system, that the plumbing details, mechanical, and HVAC details of the design were being left to the licensed subcontractors in those disciplines, because they needed flexibility to route their ducts, piping, etc., in a manner so as to accommodate the design for the building trusses, as well as the sprinkler system. The Respondent did, however, fail to note on his plans that he was leaving the electrical detail (some of which he supplied himself anyway) to a licensed electrical contractor. In this regard, it has been shown by clear and convincing evidence that he was negligent in a minor way.

    
    

25. Thus, to this extent, the Respondent has committed violations of the above statutory and rule authority quoted above to the extent of this minor instance of negligence. In those areas of the project that may not have required an engineer's design, because of the exceptions contained in Section 471.003(2)(i), Florida Statutes, the Respondent should have made proper notation on the plans. The failing to make the proper notation has been found to be negligence in the opinion, State of Florida, Department of Professional Regulation, Board of Professional Engineers v. William E. Overstreet DOAH Case No. 86-0543, June 13, 1988. That is not to say, however, that the complete plans of the Respondent were not appropriately signed and sealed, as was found above, nor that they depicted a building and project that was less than safe and properly constructed and designed; in accordance with the appropriate standard, of care recognized by professionals in the field of engineering, with the minor exception noted next above.

    
    

26. It is noted that, although the Respondent and Mr. Power disagreed as to the appropriate calculations and effective code provisions concerning "reduction of uniform floor live loads" as that related to the issue of the adequacy of the glue-laminated girder and beam connections, that testimonial discrepancy is immaterial because of the Respondent's establishment that, indeed, the connections between those members were certainly adequate in terms of proper engineering design and actual rendering "as-built"?.

    
    

27. It has been demonstrated, in an affirmative way, as admitted by one of Petitioner's expert witnesses, that any architectural work preformed by the Respondent was merely incidental to his engineering practice with regard to this project. Although Chapters 471 and 481, Flcrida Statutes (1989), attempt to describe the scope of architecture and the scope of engineering practice, the practical reality is that the proper scope of these professions overlap each other to some extent. That overlap should be accommodated without imposing the severe sanction of licensure discipline and in any event, under the above-cited statutory provisions mere incidental practice of architecture by an engineer is not a grounds for disciplinary action.

28. Finally, it is clear from the final set of plans submitted as to this project, in evidence, that the Respondent properly complied with Section 471.025(1) Florida Statutes (1989), by use of the cover letter and index on his plans which were properly signed, dated and sealed, and which incorporated by reference each sheet of the drawings, which were individually stamped in red ink with the Respondent's seal as well

    
    

29. In summary it should be pointed out that the statutes and rules upon which the Respondent has been charged are penal in nature and must, therefore, be strictly construed in favor of the Respondent, with doubts resolved in his favor. See Farzod v. Department of Professional Regulation, 443 So.2d 473 (Fla. 1st DCA 1983). Aside from the minor instance of negligence delineated above, the Respondent has presented competent, substantial evidence establishing that his work conformed to acceptable standards of engineering practice recognized in the Bay County, Florida, area, and that his conduct safely and adequately safeguarded the life, health, property, and welfare of the public. The Petitioner's allegations that the Respondent was not qualified to preform certain aspects of the job and did not show in requisite detail the electrical, plumbing, WTAC, or mechanical designs are refuted by the evidence that these plan aspects come within the statutory exceptions which appear in Section 471.003(2)(1), Florida Statutes (1989), as well as by the Respondent showing that he has adequate experience in the field of mechanical, electrical, and structural engineering, as well as by the above-referenced notations on the plans (with the exception of the electrical details of the plans for which he has been found to be negligent).

    
    

30. Accordingly, having considered the foregoing findings of fact, discussion, and conclusions of law, it must be concluded that, in the minor way described above, the Respondent has been shown to be guilty of negligence in the practice of engineering. It is, therefore,

RECOMMENDED that a Final Order be entered by the Board of Professional Engineers finding that the Respondent is guilty of negligence in the practice of engineering only to the extent of his failure to adequately note on the complete sat of plans that a licensed electrical contractor would provide design and installation planning details, that the penalty of private written reprimand be imposed, and that in all other respects the complaint be dismissed.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of April 1991.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of April 1991.

APPENDIX

Petitioner's proposed findings of fact:

1(a-g) Accepted.

1(h) Accepted, but not in itself material or dispositive. 1(i) Accepted, but not materially dispositive.

1(j) Rejected as to its material import as subordinate to the Hearing Officer's finding of fact on the subject matter.

1(k) Accepted.

1(l) Accepted, but not material to the issues to be resolved in this proceeding.

1(m) Rejected as contrary to the preponderant weight of the evidence. 1(n) Rejected as subordinate to the Hearing Officer's findings of fact on

this subject matter and to some extent on in accordance to the preponderant weight of the evidence.

1(o) Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent on in accordance to the preponderant weight of the evidence.

1(p) Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.

1(q) Accepted.

1(r) Rejected as subordinate to the Hearing Officer's finding of fact on this subject matter.

1(s) Rejected as subordinate to the Hearing Officer's finding of fact on this subject matter and to some extent not supported by a preponderant weight of the evidence.

1(u) Rejected as contrary to the preponderant weight of the evidence. 1(v) Rejected as contrary to the preponderant weight of the evidence. 1(w) Accepted.

Respondent's proposed findings of fact:

1-4. Accepted.

1. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

3. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted.

COPIES FURNISHED:

John O. Williams, Esq. Lindsey & Williams, P.A. Renaissance Square

1343 East Tennessee Street Tallahassee, Florida 32308

Richard Smoak, Esq. Sale, Smoak, Harrison,

McCloy & Thompson

Post Office Drawer 1579 Tallahassee, Florida 32402

Carrie Flynn

Acting Executive Director

Board of Professional Engineers Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay, Esq.

General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF PROFESSIONAL ENGINEERS

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PROFESSIONAL ENGINEERS,

Petitioner,

vs. DOAH CASE NO. 90-4565

DPR CASE NO 0112233

CHARLES STOKES, P.E.,

Respondent.

/

FINAL ORDER

The Florida Board of Professional Engineers of the Department of Professional Regulation, after determining that no exceptions had been filed with respect to the Recommended Order entered in this case by P. MICHAEL RUFF, Hearing Officer, Divisions of Administrative Hearings, on April 23, 1991, and after reviewing the complete record accompanying the Recommended Order, and being otherwise fully advised in the premises hereby adopts the findings of fact, and conclusions of law contained in the Recommended Order. The Board, however, rejects the recommended penalty. The Board does not impose private reprimands. The least measure of discipline is a REPRIMAND, which is hereby imposed. With this modification, and said Recommended Order is hereby declared to be and this Order becomes the Final Order of the Board of Professional Engineers.

This Order takes effect upon filing with the Clerk of the agency.

The parties are notified, pursuant to Section 120.68, Florida Statutes, that they may appeal this Final Order by filing, within thirty days of the filing date of this Order, a Notice of Appeal, accompanied by the filling fees prescribed by law, with the District Court of Appeal.

DONE and ORDERED this 18th day of July, 1991, by the Board of Professional Engineers.

CARRIE FLYN, PROFESSIONAL REGULATION SUPERVISOR

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been forwarded by U.S. Mail to CHARLES STOKES, 3000 Highway 231 North Lynn Haven, Florida 32444; and to P. Michael Ruff, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 this 18th day of July, 1991.

Docket for Case No: 90-004565

Orders for Case No: 90-004565