STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 97-2916

)

ALBERTO LUIS RIBAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 29 and 30, 1998, before Patricia Hart Malono, a duly designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was held by video teleconference, with the Petitioner and the Respondent appearing at Miami, Florida.

APPEARANCES

For Petitioner: Mary Ellen Clark, Esquire

Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Pedro R. Munilla, Esquire

1401 Southwest First Street, Suite 210

Miami, Florida 33135 STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in the Second Amended Administrative Complaint dated June 13, 1997, and if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In a Second Amended Complaint dated June 13, 1997, the Department of Business and Professional Regulation ("Department") charged Alberto L. Ribas with a violation of Section 471.033(1)(g), Florida Statutes, asserting specifically that he committed negligence in the practice of engineering by failing to use due care in performing in an engineering capacity and by failing to have due regard for acceptable standards of engineering principles. Mr. Ribas timely requested a formal administrative hearing, and the Department transmitted the file to the Division of Administrative Hearings for assignment of an administrative law judge. The formal hearing was held on

January 29 and 30, 1998.

At the hearing, the Department presented the testimony of the following witnesses: Alberto Costa; Frank Zuloaga, formerly a supervisor of roofing inspectors for the Metropolitan Dade County Building and Zoning Department; and John Pepper, an expert in the practice of engineering and inspections. Petitioner's Exhibits 1 through 4, 4a, 5 (except for the bottom half of page four), 6, and 8 through 10 were offered and received into evidence. Ruling on the admission of the document included as the second half of page four of Petitioner's Exhibit 5 was withheld until issuance of this Recommended Order. Considering all of the testimony presented regarding this document, this document was not properly authenticated. It is, therefore, not

admissible in evidence, see Section 90.901, Florida Statutes, and is hereby rejected.

Mr. Ribas testified in his own behalf and offered the testimony of Manuel Jimenez, a supervisor of roofing inspectors for the Metropolitan Dade County Building and Zoning Department, and of Mohamad Sonny Salleh, an expert in engineering and in testing roofing structures. Respondent's Exhibits 5, 9, and 12 through 20, which consists of pages one and two of Petitioner's Exhibit 8, were offered and received into evidence. Mr. Ribas was to provide the Division of Administrative Hearings with a copy of Respondent's Exhibit 17, which was omitted from his prefiled exhibits; he did not do so, and that exhibit has not been considered in preparing this order.

A transcript of the proceeding was filed with the Division of Administrative Hearings, and the parties timely submitted proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department of Business and Professional Regulation ("Department") is the state agency responsible for regulating the practice of engineering in Florida and for investigating and prosecuting complaints against licensed engineers. Sections

   455.201 and .225, Florida Statutes. The Board of Professional Engineers ("Board") is the state agency responsible for certifying candidates for licensure as engineers and for disciplining licensed engineers. Sections 471.007, .015, and

   .033, Florida Statutes.

   
   

2. At the times material to this action, Alberto L. Ribas was licensed by the Department as a professional engineer, having been issued license number PE 0014452. Mr. Ribas has been a licensed professional engineer in Florida since 1970.

3. On or about November 18, 1992, Mr. and Mrs. Alberto Costa entered into a contract with Miguel M. Cruz for the

   re-roofing of their home located in Miami, Florida, after it had been damaged by Hurricane Andrew. The job involved the installation of Venezuelan Clay "S" roofing tiles, and building permit number 93093185 was issued by the Metropolitan Dade County Building and Zoning Department on January 7, 1993. According to the building permit, the re-roofing job would require the installation of 3200 roofing tiles covering 3200 square feet.

4. At some point during the installation of the roof,

   
   

   Mr. Costa noticed what he thought were problems with the way the tiles had been nailed to the roofing deck. He immediately telephoned the Metropolitan Dade County Building and Zoning Department and requested an inspection.

5. On March 22, 1993, Mr. Frank Zuloaga, then a supervisor of roofing inspectors with the Metropolitan Dade County Building

   and Zoning Department, conducted an inspection of the work completed to date on the roof of Mr. Costa's residence.

   Mr. Zuloaga noted on the inspection tag that he left on the site that, among other things, "[t]iles must have 2 nails." He did not approve the installation of the roofing tiles he inspected and prepared a notice dated March 25, 1993, in which he advised Mr. Cruz that he was in violation of the South Florida Building Code. Mr. Zuloaga specifically stated in the notice that the roofing tiles were not installed according to manufacturer's specifications; that Mr. Cruz had failed to call for an earlier, mandatory inspection; and that the workmanship was not according to code. Mr. Zuloaga required in the notice that the work be corrected by April 21, 1993, by removing non-complying tiles and installing tiles in accordance with manufacturer's specifications and by ensuring that the workmanship on the job reflected installation in "accordance with SFBC [South Florida Building Code] and the mfr [manufacturer's] recommendation."

6. At some point, Mr. Cruz asked Mr. Ribas to look at the roofing tiles he had installed on Mr. Costa's residence and to write a letter to the Metropolitan Dade County Building and Zoning Department expressing his opinion about the adequacy of the installation. After inspecting the installation of 600 of roofing the tiles, Mr. Ribas wrote a letter addressed to the "Metro Dade County Building Department" which stated in its entirety:

   Re: Residence at 10361 Sw 15th Terrace Permit No. 93-093185, Dated 1-7-93

   
   

   Gentlemen:

   
   

   This is to certify that after having inspected the roof of the above listed residence, I have found about 600 roofing tiles properly installed and anchored with a common #10 hot dipped galvanized nail and RT600 adhesive applied to same, making for a stronger layout than the one specified for by the manufacturer.

   The letter was signed by Mr. Ribas, who identified himself as "Albert L. Ribas, P.E., Registration #14452." Mr. Ribas gave the letter to Mr. Cruz and had no other involvement with the Costa roofing project.

7. The inspection of the roofing tiles was not undertaken by Mr. Ribas to determine if the tile installation conformed with the South Florida Building Code, and the letter he wrote expressing his opinion about the installation of the 600 roofing tiles did not, and was not intended to, certify that the installation was complete or that the installation was done in accordance with the South Florida Building Code. Mr. Ribas was not aware at the time he inspected the roof that Mr. Zuloaga had issued a notice of violations on March 25, 1993.

8. During the times material to this proceeding, Metropolitan Dade County accepted building inspection reports from independent contractors under contract with the Building and Zoning Department for such services. These contractors were required to be certified by the Metropolitan Dade County Board of

   Rules and Appeals. In addition, final building inspection reports were accepted from special inspectors, who were hired by a property owner to inspection a particular project. The code in effect in 1993 required that a person be approved as a special inspector by the appropriate authorities. Mr. Ribas was not acting in the capacity of a special inspector when he inspected the 600 roofing tiles installed on the roof of Mr. Costa's residence.

9. The permit history file maintained by the Metropolitan Dade County Department of Building and Zoning does not contain the April 30 letter written by Mr. Ribas, and there is no record that the letter was logged onto the computer as part of the permit history file nor that it was accepted by the Metropolitan Dade County Building and Zoning Department as the final inspection of the roof on Mr. Costa's residence. The letter does not appear in the microfilm copy of the permit file maintained Metropolitan Dade County Building and Zoning Department for the re-roofing project.

10. There are a number of things which must be done correctly in order for roofing tiles to be properly installed:

    You look for several things. You look at the method of attachment, you look at head lap, you look at the side laps, you look how they're put together, you look whether they're installed on batons, if those batons are vertical or horizontal or they're installed directly to the sheathing itself.

    You look at the membranes beneath it and assure, that if it's required, that proper sealants have been used for nails to

    penetrate, so the roof won't leak later. That's the majority of the things. 1/

    
    

11. The actual tiles that had been installed on the roof of Mr. Costa's residence at the time Mr. Ribas looked at the roof were Lifetile's Espana S-Style Tile for Nail-on System. The Product Control Notice of Acceptance for these tiles was approved on April 13, 1992, by the Metropolitan Dade County Board of Rules and Appeals and was effective until April 13, 1995. The specific conditions of the acceptance permitted these tiles to be used for nail-on systems and provided in subsection (g): "All tiles shall be fastened with a minimum two ten penny corrosion resistant minimum hot dipped galvanized nails "

12. The South Florida Building Code in effect in April 1993 required that the type of roofing tiles installed on Mr. Costa's residence be "nailed with two galvanized nails." At the time

    Mr. Ribas wrote the April 30, 1993, letter, all of the inspectors were aware that the South Florida Building Code required installation of the Espana "S" tiles with two galvanized nails, and, according to Mr. Zuloaga, it would have been obvious to the inspectors that the installation did not conform to the South Florida Building Code.

13. Pro-Series RT-600 Roof Tile Adhesive was approved by the Metropolitan Dade County Board of Rules and Appeals, effective from October 21, 1991, through October 21, 1994. The specific conditions stated in the Notice of Acceptance provides:

    "This approves Pro-Series RT-600 a roof tile adhesive used for the repair of existing roofs. However, the application of this product may be used with new construction in addition to the requirements for a nail-on system." When used with a nail-on system, RT-600 adhesive is used to adhere the tiles to each other, not to the roof deck.

14. At the time he inspected the roofing tiles, Mr. Ribas knew that the manufacturer's specifications and the South Florida Building Code required the tile to be installed with two nails. He also knew that RT-600 had been approved for some uses by the Metropolitan Dade County Board of Rules and Appeals. Mr. Ribas formed the opinion expressed in the April 30 letter that attaching the tile with one nail and TR-600 provided a stronger installation than the manufacturer's specifications on his experience with RT-600 adhesive, which was in general use in the area after Hurricane Andrew; on his knowledge of general engineering principles; and on his years of experience as an engineer. He did not arrange to have the tiles tested to determine if his opinion regarding the strength of the layout would be borne out by test results.

15. In 1996, after the Department filed its initial Administrative Complaint against him, Mr. Ribas contacted Mohamad Salleh, a licensed professional engineer who is also certified to conduct nail pull and tile uplift tests on roofing materials.

    Mr. Ribas asked Mr. Salleh's opinion as to whether the

    installation of a tile with one nail and RT-600 adhesive provided a stronger layout than the installation of a tile with two nails and no adhesive.

16. In Mr. Salleh's opinion, it is obvious to a trained and experienced engineer that the tile installed with one nail and adhesive would provide the stronger installation. However, at Mr. Ribas' request, Mr. Salleh conducted a test to measure the amount of uplift on tiles installed with the two systems, using Protocol PA-106, established by the Metropolitan Dade County Office of Building Code Compliance. Protocol PA-106 "is a product application control test to confirm either: 1) sufficient bonding by the mortar or adhesive to the tile and underlayment in a mortar or adhesive set tile system; or 2) effective mechanical attachment of components within a rigid, discontinuous roof system." Mr. Salleh used this test because it would be the most appropriate test for his purposes.

17. Mr. Salleh concluded from the results of the test that the installation method using one nail and RT-600 adhesive produced a stronger installation than the method using two nails and no adhesive.

18. On June 3, 1993, Mr. Zuloaga re-inspected the roof of Mr. Costa's residence both as a follow-up to the March 22 inspection and in response to a complaint. Mr. Zuloaga found that none of the violations included in the notice to Mr. Cruz dated March 25, 1993, had been corrected. At some point,

    Mr. Costa hired another roofing contractor to complete the re- roofing job.

19. The evidence presented by the Department in this case is not sufficient to establish with the requisite degree of certainty that Mr. Ribas failed to adhere to acceptable standards of engineering principles or failed to use due care in formulating the opinion stated in his letter of April 30, 1993. 2/ Furthermore, there is no evidence in this case to support a finding that Mr. Ribas's April 30, 1993, letter was submitted to the Metropolitan Dade County Department of Building and Zoning in the normal course of its business; there is no evidence to support a finding that Mr. Ribas intended the Metropolitan Dade County Department of Building and Zoning to accept the letter as the final inspection of the roof; and, there is no evidence to support a finding that the Metropolitan Dade County Department of Building and Zoning accepted the letter as the final inspection. Finally, there is no credible evidence to support a finding that, considering the entire text of the April 30 letter, Mr. Ribas intended to certify that the installation of the roofing tiles he inspected was done in accordance with the South Florida Building Code simply because he stated that the tiles were "properly installed."

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of

    the parties thereto pursuant to Section 120.57(1), Florida Statutes (1997).

21. In its Second Amended Administrative Complaint, the Department has requested that administrative penalties including suspension or revocation of his license or imposition of an administrative fine be imposed against Mr. Ribas. Accordingly, the Department must prove the allegations by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co.,

    670 So. 2d 932, 933-34 (Fla. 1996); Ferris v. Turlington, 510

    
    

    So. 2d 292 (Fla. 1987). In Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court observed:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitance, as to the truth of the allegations sought to be established.

22. Section 471.033(1)(g), Florida Statutes, provides that the Board may take disciplinary action against a licensed engineer if he or she has committed the act of "[e]ngaging in fraud or deceit, negligence, incompetence, or misconduct, in the practice of engineering."

23. The Board has provided in Rule 61G15-19.001(4), Florida Administrative Code, that

    1. 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 performing in an engineering capacity or failing to have due regard for acceptable standards of engineering principles. Professional engineers shall approve and seal only those documents that conform to acceptable engineering standards and safeguard the life, health, property and welfare of the public.

24. Based on the findings of fact herein, the Department has failed to meet its burden of proving by clear and convincing evidence that Mr. Ribas committed negligence in the practice of engineering.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Engineering of the Department of Business and Professional Regulation enter a final order dismissing the Second Amended Administrative Complaint against Alberto L. Ribas.

DONE AND ENTERED this 12th day of August, 1998, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1998.

ENDNOTES

1/ Testimony of John Pepper, transcript at page 157-58.

2/ The Department's two expert witnesses opined that Mr. Ribas failed to adhere to acceptable standards of engineering principles and failed to use due care in formulating his opinion regarding the relative strength of the installation of the roofing tiles because he did not conduct extensive testing to support the opinion before he stated the opinion in a letter addressed to the Metropolitan Dade County Building and Zoning Department. The opinions of the Department's experts are rejected. See Easkold v. Rhodes, 614 So. 2d. 495, 497 (Fla.

1993); Gray v. Russell Corp., 681 So. 2d 310, 316 (Fla. 1st DCA

1996).

COPIES FURNISHED:

Natalie A. Lowe, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Pedro R. Munilla, Esquire MUNILLA & ASSOCIATES, P.A.

1401 Southwest First Street

1401 Professional Center, Suite 210

Miami, Florida 33135

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-002916

Orders for Case No: 97-002916