STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA ENGINEERS MANAGEMENT CORPORATION,
Petitioner,
vs.
NICHOLAS NICHOLSON, P.E.,
Respondent.
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) Case No. 01-0622PL
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RECOMMENDED ORDER
Notice was provided on July 2 and 3, 2001, and September 25, 2001, a formal hearing was held in this case.
Authority for conducting the hearing is set forth in Sections
120.569 and 120.57(1), Florida Statutes. The hearing location was the Hernando County Courthouse, 20 North Main Street, Brooksville, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.
APPEARANCES
For Petitioner: Douglas D. Sunshine, Esquire
Florida Engineers Management Corporation 2507 Callaway Road, Suite 200
Tallahassee, Florida 32303-5267
For Respondent: David P. Rankin, Esquire
Law Offices of David P. Rankin, P.A. 3837 Northdale Boulevard, Suite 332
Tampa, Florida 33624
STATEMENT OF THE ISSUES
Should the Board of Professional Engineers impose discipline against Nicholas Nicholson, P.E., for engaging in negligence in the practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes?
PRELIMINARY STATEMENT
Petitioner brought an Administrative Complaint against Respondent in FEMC Case No. 00-0062, charging negligence. The Administrative Complaint was signed December 27, 2000. On January 12, 2001, consistent with his opportunities, Respondent served a statement disputing issues of material fact found in paragraphs 8, 10, and 11 of the Administrative Complaint, following an election of rights to proceed to formal hearing consistent with Sections 120.569 and 120.57(1), Florida Statutes. On February 6, 2001, Respondent served Petitioner with a Petition for Formal Hearing that more specifically set forth the matters in dispute. On February 14, 2001, Petitioner forwarded the case to Sharyn Smith, Chief Judge of the Division of Administrative Hearings, for the assignment of an administrative law judge to conduct a formal hearing to resolve issues of material fact in dispute.
A motion was made to amend the Administrative Complaint to reflect a change in the date alleged at paragraph 6 and to add the word "adequate" in the allegations in paragraph 10b. The
motion was unopposed. The motion was granted. The case proceeded to hearing on the Amended Administrative Complaint.
Respondent moved to exclude the expert testimony of Peter J. Iglesias, P.E. Petitioner filed a written response
opposing Respondent's motion to exclude the expert testimony of Mr. Iglesias. That motion was heard before the hearing commenced on July 2, 2001, and was denied, as reflected in the hearing transcript for that date.
Consistent with the requirements in a Prehearing Order, the parties provided a statement of facts which were admitted by the parties and those facts which remained to be litigated. That prehearing submission responded to the factual allegations in the Amended Administrative Complaint. The admitted facts are accepted and are separately detailed in the fact-finding of this Recommended Order. That fact-finding precedes the fact-finding made in resolving remaining material facts in dispute. The issues of law about which there is agreement and those issues of law in contest were announced in response to the Prehearing Order requiring that written disclosure. Those points of law described by the parties have been considered in preparing the Recommended Order.
At hearing, Petitioner presented James Owen Power, P.E., and Peter J. Iglesias, P.E., as its witnesses. Petitioner's Exhibits 1 through 4 and 7 were admitted. Petitioner's Exhibits
5, 6, and 8 were demonstrative exhibits, which accompany this record. Respondent testified and presented Wilbur T. Yaxley, C.S.P., P.E., as his witness. Respondent's Exhibits 1, 3, 3A, 3B, 5, 7 (August 23, 1995, correspondence from the Florida Board of Building Codes and Standards), 8, 9, 15A-D, 16A-C, and 17 were admitted, together with the Depositions of Pamela Prunty and Richard Scianimanico. Respondent's Exhibit 18, a demonstrative exhibit, is submitted with this record.
Respondent's Exhibit 7, minutes of the August 8, 1995, meeting of the Florida Board of Building Codes and Standards, was denied admission but is included with this record.
The last volume of the transcript was filed with the Division of Administrative Hearings on October 15, 2001. Without opposition, Petitioner moved to extend the time for filing proposed recommended orders until December 7, 2001. The parties were orally advised that the motion was granted, as confirmed by this written reference. By extending the normal time for submitting proposed recommended orders, the date upon which the recommended order shall be entered was advanced.
Rule 28-106.216, Florida Administrative Code. The parties filed their Proposed Recommended Orders on December 7, 2001. Those Proposed Recommended Orders have been considered in preparing the Recommended Order.
FINDINGS OF FACT STIPULATED FACTS
Respondent is and has been at all times material to this matter, a licensed professional engineer in the State of Florida, having been issued License No. PE 34603.
Respondent was the engineer of record for plans for a Sweetwater Homes of Citrus model home located in Citrus County, Florida.
On November 12, 1997, Respondent signed and sealed drawings for Sheet 1 of 4 Floor Plan (Model Tradewinds R), Sheet
2 of 4 Foundation and Plumbing Plan (Model Tradewinds R), and Sheet 4 of 4 Elevations (Model Tradewinds Lc) for the Sweetwater Homes of Citrus.
On November 17, 1997, Respondent signed and sealed drawings for Sheet 1 of 1 Typical Wall Section and Details.
On December 18, 1997, Respondent signed and sealed drawings for an untitled truss layout sheet.
Respondent certified all five sheets with the statement: "I hereby certify that I have performed the attached design to comply with 100 mph loads and it is in compliance with Section 1606 of the Standard Building Code." The sheets were submitted to the Citrus County Building Department for permitting.
In Sheet 4 of 4, the elevation, as shown, is inconsistent with the indicated roof framing in that, contrary to what is shown on the Elevation, beginning at a point 30'-6" from the rear of the building, there is a 14'-2" length of exterior wall which is 15'-0" high.
The bearing wall between the Garage and Bedroom No. 3 is not a shear wall.
On top of the bond beam is a gable truss which at the ridge rises some 10'-5" higher. (Respondent does not dispute this fact but prefaces the admission to the extent that the 10'-5" reference is an approximation.)
In the 44'-4" clear distance between shear walls, there are seven #5 vertical bars in grouted cells.
ADDITIONAL FACTS
The residence in question is the Morse residence. A Certificate of Occupancy for the residence was issued as required by the Codes and Ordinances of Citrus County in relation to required inspections performed by county building officials. The date of issuance was July 10, 1998.
The drawings signed and sealed by Respondent for the Morse residence that formed the basis for the Administrative Complaint were admitted as Petitioner's Exhibit No. 4.
The items found within the plans that Petitioner claims constitute negligence in the practice of engineering,
disputed by Respondent, are divided into two categories. The first category concerns what is referred to in the Administrative Complaint as the "gable end-left side" as depicted in the elevation in Sheet 4 of 4, in particular the left elevation. The complaint in this category concerning the gable end-left side elevation is further specified in relation to the consistency of the depiction in Sheet 4 of 4 of the elevation when contrasted with the depiction of the roof framing plan on Sheet 4 of 4, in that beyond the 30'-6" point from the rear of the building, there is a 14'-2" length of the left elevation exterior wall which is 15'-0" high. The scale drawing of the left elevation does not describe the 14'-2" section of the exterior wall to be 15'-0" high, as contemplated by the roof framing plan. While Respondent concedes the inconsistency between the indicated roof framing and left elevation on Sheet 4 of 4, he contests whether this deficiency causes him to be out of compliance with the expected standards for engineering practice.
James Owen Power, P.E., is a registered engineer in Florida. He holds a bachelor of science degree in civil engineering. He was recognized as an expert in structural engineering in this proceeding. Mr. Power confirmed the height of the wall in the 14'-2" section by examining other elevations depicted aside from the left elevation. He resorted to the
truss layout sheet for the residence to support his understanding. He expressed the concern that the discrepancy between the depiction of the wall in the left elevation and the true height of the wall would have a consequence in the ability of the wall to resist wind loads. Mr. Power identified the wall height where the 14'-2" section is found as promoting the possible failure to provide adequate bracing for the top of the block wall and the prospect that the tie beam atop the wall would not continue from the 30'-6" section through the 14'-2" section of the wall.
Wilbur T. Yaxley, P.E., graduated from a five-year program for structural engineering. He is a registered professional engineer in Florida. He was recognized as an expert in structural and forensic engineering. He does not take issue with the fact that the left-side elevation on Sheet 4 of 4 fails to indicate the proper height of the 14'-2" section of the exterior wall. He considers the error to be a simple mistake that does not meaningfully impugn Respondent's performance as an engineer.
Petitioner singled out the discrepancy between the depiction of the roof framing and the left elevation as drawn in relation to the 14'-2" section of the exterior wall, as constituting an actionable circumstance. As such, this mistake
has not been shown to have meaningful significance in the disciplinary context.
The balance of the allegations under the heading, "gable end-left side (elevation Sheet 4 of 4)", pertain to the subject of wind loads on the left elevation exterior wall and the adequacy of the wall to resist wind loads, as portrayed in the plans, consistent with sound engineering practices, recognizing that Respondent has certified that the design complied with 100 mph loads described in Section 1606 of the Standard Building Code.
At the time in question the Standard Building Code in effect was the 1994 version. Within that document is Section 1606, entitled "Wind loads." Based upon the reading of that provision and other reference sources deemed to have pertinence, Petitioner, through its consultant experts, expresses the belief that the design is unable to withstand the 100 mph wind load. Further, Petitioner asserts in its proof that to properly respond to wind loading, the plans must not only address the main wind force resisting system requirement but that of components and cladding and the ability of those elements to resist wind loads when designed for separate load cases. Petitioner's position is supported by the opinion testimony of Mr. Powers. It also relies on the opinion testimony of Peter J.
Iglesias, P.E., who is licensed in Florida and was recognized as an expert in structural engineering and plans examination.
In opposition to Petitioner's position, Respondent and his expert, Mr. Yaxley, contend that the use of a computer program by EDA Software, Inc., to calculate main wind force resisting coefficients solely, as a means to respond to wind loads, is recognized in Florida and that the software was properly exercised for that purpose in designing the Morse residence.
The respective opinions by the parties in their legitimacy are discussed in the interest of resolving the dispute.
Petitioner's experts read Section 1606.2.2.2., Standard Building Code 1994, as establishing the necessity in design to calculate not only wind loads related to the main wind force resisting system, but wind loads for components and cladding in the instance where those members act as part of the main wind force resisting system and as individual components in cladding. In those cases, separate loads shall be calculated. Section 1606.2.2.2 states, "members that act as both part of the main wind force resisting system and as components in cladding shall be designed for separate load cases."
References are also made to the definitions within Section 1606.2.3, Special Definitions for 1606.2.:
For the purpose of this section, certain special terms are defined as follows:
COMPONENTS AND CLADDING-elements that are either directly loaded by the wind or receive wind loads originating at relatively close locations and that transfer these loads to the main wind force resisting system.
* * *
MAIN WIND FORCE RESISTING SYSTEM (MWFRS) -
An assemblage of major structural elements assigned to provide support for secondary members in cladding. The system primarily receives wind loading from more than one surface.
Both parties recognize that the calculations in association with a main wind force resisting system predicts lesser wind loads than the use of components and cladding coefficients to determine wind loads, thus creating different expectations in the design to meet expected wind loads. Respondent in the present design did not exercise the coefficients for components and cladding when addressing wind loads.
To counter Petitioner's contention Respondent asserts, through his proof, that there is no consensus among engineers in various fields concerning the need to use components and cladding coefficients or limit the consideration to main wind force coefficients when determining wind loads for design purposes. Respondent defers to correspondence dated August 23,
1995, from Larry M. Schneider, Chairman of the Florida Board of Building Codes and Standards, to a Mr. Edward Hubert, P.E., which Respondent believes justifies the use of the EDA Software program to determine wind loads in the manner Respondent employed. That correspondence states in pertinent part:
The Florida Board of Building Codes and Standards, as authorized by Section 489.115(4)(b)2., Florida Statutes, recognizes the EDA Software, Inc., Residential Wind Design Analysis computer program as an alternative method for demonstrating compliance with Section 1606, Wind Loads of the Standard Building Code.
The Board recognizes this methodology for designs of one and two family dwellings developed by this method when conducted by Florida Registered Engineers as authorized by Section 471.015, Florida Statutes, Registered Architects as authorized by 481.213, Florida Statutes, and Division I contractors as authorized by Section 489.115 or Section 489.117, Florida Statutes, and when submittals for permitting include sufficient details and specifications (such as that provided on the computer program summary printout) for evaluation and inspection by the permitting jurisdiction.
The EDA Software for Residential Wind Design Analysis employed by Respondent in determining the main wind force resisting system results for 100 mph wind loads is recognized in his field. There was no showing that he failed to properly exercise the software. He made separate calculations for the rat runs in the design as they influenced the main wind force resisting system calculations for the residence.
Respondent also relies on a declaratory statement in the matter of Edward F. Hubert, P.E., Petitioner, DCA 99-DEC- 046, before the State of Florida Building Commission, in its remarks concerning the EDA Software for wind design as a means to justify the choice to employ the software in designing the Morse residence; however, the declaratory statement was issued on April 20, 1999, beyond the point at which the drawings were rendered. Thus, the declaratory statement created could not justify the choice to use the computer software.
Finally, Respondent, in its proof, urges that the Petitioner's criticism of the design tends to ignore certain elements within the design of the structure which would lend strength to this residence in resisting wind loads.
With this general background discussion in mind, the remaining allegations are examined.
Petitioner alleges in paragraph 10b that:
The rear of the building 10'-0" above the finished floor is an 8" x 8" grouted bond beam reinforced with one No. 5 reinforcing bar. There is no intermediate structural element capable of providing adequate lateral resistance; the bearing wall between the Garage and Bedroom No. 3 is not a shear wall.
The plan does not make clear whether the wall height is 10'-0" above the finished floor. If the wall height is
8'-0", excluding window or door openings, an 8" x 8" tie beam
with one #5 reinforcing bar would be envisioned. If the wall is 10'-0", then a 16'-0" tie beam would be used with two #5 reinforcing bars, according to the plan. The gravamen of the complaint concerning this allegation is in the instance where there is available an 8" x 8" tie beam (grouted bond beam) with one #5 reinforcing bar associated with the wall in question, lacking some intermediate structural element to provide lateral resistance to wind loading, excluding the bearing wall between the garage and bedroom No. 3, which is not a shear wall, the design fails to meet the standards for engineering practice.
Mr. Power expresses the opinion that the lateral resistance that is present with the design elements either in their individual capacity or working together do not suffice to meet the 100 mph wind load.
While Mr. Yaxley agrees that the wall between the garage and bedroom No. 3 is not a shear wall allowed to support the outside masonry wall, he is persuaded that the placement and spacing of the "rat run" associated with the outside wall, on the top of the bottom cord of the trusses, would create lateral resistance. Mr. Yaxley also refers to the filled cells with rods that extend through the block wall from where they are buried in the foundation up to the point where they are tied into the tie beam, creating a column to resist wind loading. In arriving at his opinion concerning the support for the wall in
resisting lateral wind loads, Mr. Yaxley has referred to source material from the Standard Building Code Congress International.
Mr. Power was mindful of the contribution that the cells filled with concrete would make to providing lateral support for the outside wall in question when expressing the opinion that the available structural elements were not adequate to resist lateral wind loading. The number of grouted cells discussed by Mr. Yaxley and Mr. Power in the subject wall is seven.
Petitioner alleges at paragraph 10c that:
On top of the bond beam is a gable truss which at the ridge rises some 10'-5" higher. The bond beam, acting laterally cannot safely span the 44'-0" clear distance between the shear walls when subjected to code specified wind loads from wall and gable truss.
Mr. Power expresses the opinion that the gable end truss has no adequate capacity to brace the top of the block wall. It provides no lateral support, in his view. The connection between the gable truss and the masonry wall is a hinge at the top of the block wall and the bottom of the gable end truss. Lacking the ability of the gable end truss to adequately brace the top of the block wall which spans the 44'-4" between the opposite end shear walls, some other source
of support would be necessary to resist wind loading. Mr. Power suggests the possibility of the use of a ceiling diaphragm for
that purpose, but does not believe the drawings make reference to a ceiling diaphragm. In addition to the need to state, call out, or detail reference to the use of a ceiling diaphragm in the plan, Mr. Power expressed the opinion that the Standard Building Code would not allow a ceiling diaphragm of gypsum board. Gypsum Board was the anticipated ceiling material in the plan. According to Mr. Power, the imposed wind load on the wall is 24 1/2 pounds per square foot, but the wall acting as a cantilever can only resist wind loading at 6 1/2 pounds per square foot.
Mr. Iglesias offers the opinion that the drawings do not specify the use of a ceiling diaphragm to allow for load transfer. Mr. Iglesias expressed the opinion that the multiple levels of ceiling within the residence defeated the purpose of the diaphragm in terms of the need for continuity, assuming that the ceiling to be installed could be considered a diaphragm. He, too, believes that there is a problem with the ability of the bond beam to safely span the 44'-4" clearance between shear walls when subjected to specified wind loads on the wall and gable truss. In his opinion the wall acts as a cantilever in the configuration where it lacks support at the top.
Mr. Yaxley expresses the belief that the actual height of the ridge exceeds 10'-5", which would promote greater loading. He does not believe that the bond beam spans the
entire 44'-4" distance without meaningful support. He perceives the distance to be roughly 30'-0", with the last 14'-0" subject to support provided by perpendicular trusses in the plan, as they are tied into the wall and extend back into the house offering lateral stability to the wall. The section of 14'-0" is an area where the trusses are perpendicular, with a truss anchor available for each truss. With this in mind, Mr. Yaxley believes there is sufficient support for the top of that wall in the 14'-0" section.
Petitioner alleges at paragraph 10d that:
In the 44'-4" clear distance between shear walls there are seven #5 vertical bars in grouted cells. The wall is incapable of safely spanning 10'-0" as a cantilever without lateral support at the level of the bond beam.
Mr. Power perceives the seven #5 vertical bars in grouted cells as having value when the wall is cracked, in which case they would offer resisting capacity to the wall as a cantilever, but not as a member spanning from the foundation to the top of the wall, absent existing support at the top of the wall. Consequently, Mr. Power believes that the wall is incapable of safely spanning 10'-0" as a cantilever without that lateral support at the level of the bond beam. Taking into account the vertical reinforcing bars in the wall, the value of the bond beam or tie beam at the top of the masonry wall and
2 x 4 bracing in the truss base, Mr. Power does not believe that the system could accommodate 24.45 pounds per square foot of wind loads imposed per his calculations. Mr. Power believes that the safe capacity of the wall is 6.58 pounds per square foot, less than adequate.
Mr. Yaxley differs in his opinion. He acknowledges the existence of the seven #5 vertical bars in grouted cells in the wall. If those filled cells constituted the only lateral support, Mr. Yaxley expressed the opinion that those vertical bars in grouted cells would not meet the 100 mph wind load requirement in the span. However, even absent specification of elements of a ceiling diaphragm in the plan, Mr. Yaxley believes that it is still acceptable to assume that a ceiling diaphragm would provide support for the wall. Mr. Yaxley expressed the opinion that under the Standard Building Code, there is a prohibition against the use of vertical diaphragms made of gypsum board. By inference, absent some reference within the Standard Building Code, prohibiting the use of gypsum board in horizontal plane as a diaphragm, he concludes that it can be used as a horizontal diaphragm. In addition, there are the aforementioned perpendicular roof trusses in the 14'-0" section of the wall which provides support. Mr. Yaxley made calculations concerning his belief that the wall was adequate to span the 10'-0" as a cantilever based upon the roof plywood
diaphragm, the roof frame bracing, the tie beam and the wall itself.
The second major category concerning the complaint is entitled, "Lateral Bracing - (Typical Wall Section and Details Sheet 1 of 1)."
Within the second major category are found the following allegations:
10 e. The Code specifies an outward wind suction of 950 lbs., which load must be transferred in tension through the "rat run" and resisted by the diagonal 2 x 4 strut, resulting in compressive force of 1,467 lbs. in that member which is unbraced over its 12'-4" length and is thus grossly overstressed.
10 f. The detail does not specify the essential connections and there is no feasible way to provide for an adequate stress transfer in the arrangement shown.
10 g. To transfer 1,467 lbs. safely, at least nine nails would be required. They are not specified in the plans and they cannot effectively be installed in the arrangement as shown.
Mr. Power expresses the opinion that the system design, in which diagonal struts are involved in the transfer of loads up to the roof sheeting under conditions of suction, will not work. According to calculations performed by Mr. Power the compressive force exerted on those struts can be as little as 1,369 pounds or as much as 1,467 pounds. The wind load on the tributary area involved in this analysis can be as little as 920
pounds or as much as 950 pounds inward or outward at the rat run, per the calculations, at the interface of the block wall and the gable end truss. Although the rat run is nailed to the trusses, the trusses do not support the rat run. If 920 pounds is exerted, acting outward or under suction, it is delivered to the bottom of the diagonal member, which Mr. Power presumes to have been connected at either end of the diagonal member. With this transfer a condition would be created which grossly overstresses the diagonal member. Mr. Power does not believe that the diagonal member would act effectively under those circumstances. Although no details are offered concerning the connections of the diagonal member in the plans, Mr. Power calculates that as few as eight or as many as nine nails would be needed to provide for adequate stress transfer. Based upon the size of the member, the diagonal brace, eight or nine nails could not fit into the space available for the connection to accommodate transfer resulting from compressive force.
Mr. Yaxley questions Mr. Power's calculation of the amount of wind suction created as a function of the use of the 1994 Standard Building Code. By his calculations Mr. Yaxley believes that the suction is 126 pounds. Mr. Yaxley does not believe that the diagonal member in the plan is grossly overstressed. Mr. Yaxley does not believe that the diagonal member is necessary to resist wind loads, all other features in
the wind force resisting system being known. By his calculations, Mr. Yaxley has concluded that there is sufficient stiffness in the masonry wall, the ceiling, and the rat runs to support the wall without the use of the diagonal struts.
Mr. Yaxley acknowledges that the nature of the attachment of the diagonal strut is not detailed in the plans but believes that the plans contemplate some form of attachment to the bottom chord of the truss. Lacking specificity as to how many nails would be used to make the attachment, Mr. Yaxley relies on his general knowledge that two or three nails would be employed.
Hypothetically, assuming a load transfer in the amount of 1,467 pounds, Mr. Yaxley believes that seven nails would be sufficient to connect the diagonal strut and resist the compressive force.
On a related topic, Mr. Yaxley's inquiries and his reading of the specifications associated with the TA 18 truss anchors called for in the plan lead him to believe those truss anchors provide three-directional resistance to forces. Those features of resistance which are available individually concern up-lift, resistance lateral to the wall and resistance parallel to the wall, without diminished effect when employed in the three capacities.
Mr. Iglesias expresses the opinion that the TA 18 truss anchors, based upon his discussions with others and his understanding of the TA 18 truss anchors uses and their ability
to resist loads in more than one direction, could not perform in that manner.
Mr. Power expresses the ultimate opinion that Respondent did not exercise due care in performing the function of an engineer. The underlying basis for the opinion concerns the failure to provide adequate resistance to brace the wall in question, having certified that the wall was in conformance with the 1994 Standard Building Code for 100 mph wind loads.
Likewise, Mr. Iglesias finds fault with Respondent's performance. Mr. Iglesias does not believe Respondent utilized due care in performing in an engineering capacity in that certification was made that the plans complied with the 100 mph wind standard under the Standard Building Code, and Mr. Iglesias does not believe that to be correct.
In opposition, Mr. Yaxley believes that Respondent's plans did satisfy the requirements of the Standard Building Code in relation to the 100 mph wind loads.
Mr. Power, in his underlining opinions, posited the view that wind loading is not imposed evenly over building surfaces, such as the wall in question. He believes there are major fluctuations in intensity from one point to the next with occasional loads of extreme intensity concentrated over relatively small areas. This means that while trying to examine the effects of wind loads on the entire building or some major
portion, such as the wall in question, the use of average wind loads is an acceptable approach but does not address the more intense concentration of wind loads on small areas, which cannot be ignored. These differences are addressed in the Standard Building Code, envisioned by Section 1606.2.2.2, under measures for the main wind force resisting system in the entire building or a major portion and for components and cladding for smaller areas of concentration as separate load cases. Under Section 1606.2.3, in its definition of components and cladding,
Mr. Power believes that the exterior wall in question is an element directly loaded by the wind, receiving wind loads originating in relatively close locations and transferring those loads to the main wind force resisting system, calling for a consideration of the wind forces consistent with Section 1606.2.5 and its more stringent requirements for coefficients, as well as the less stringent coefficients associated with Section 1606.2.4 related to main wind force resisting systems.
Mr. Iglesias had a similar opinion to Mr. Power's in expressing the belief that components and cladding needed to be examined as part of the process in evaluating the adequacy of the plans. In this instance, Mr. Iglesias believes that components and cladding coefficients should be applied to examine smaller areas in the wall. Mr. Iglesias expresses the opinion that certain structural elements may be considered part
of the main wind force resisting system and also a component and cladding, requiring the calculation of coefficients under both approaches in the wall in question, a structural element involved in both calculations of the effects of wind loading.
To try to gain an understanding concerning the question of whether a consideration of wind loads should be limited to an evaluation of the main wind force resisting system, Mr. Yaxley spoke to persons within the profession who he felt might provide insight and ultimately determined that in his opinion, the Standard Building Code, when examining questions of wind loads for the subject wall, would be sufficiently addressed by calculations for the main wind force resisting systems pursuant to those coefficients. For Mr. Yaxley, to determine the adequacy to resist the 100 mph wind load is accomplished by examining coefficients for the main wind force resisting system on average and not small areas under the coefficients associated with components and cladding.
Factual Determination
The August 23, 1995, correspondence from the Chairman of the Florida Board of Building Codes and Standards authorized the use of the EDA Residential Wind Design Analysis computer program. The letter of authorization did not identify how that software was to be employed when examining the requirements of Section 1606 of the Standard Building Code. Respondent was
entitled to use the EDA Software to determine wind loads but he must exercise that tool consistent with the proper interpretation of Section 1606 as written. To that end, there are elements within the subject wall which act both as parts of the main wind force resisting system and as components and cladding. This made it necessary for the design to contemplate the more rigorous influence of wind loads under coefficients associated with components and cladding. It was not enough to limit consideration to coefficients involved with wind loading under the main wind force resisting system. The Residential Wind Design and Analysis computer program lends itself to both an assessment of coefficients associated with the main wind force resisting system and those coefficients pertaining to components and cladding. Alternatively, without intending to consider wind loading on effected components and cladding as a function of the computer software, there was the prospect that the plan would meet those requirements for wind loading coincidentally. This refers to the elements available in the subject wall over its expanse for lateral resistance measured against wind loads associated with components and cladding. As detailed in the plan, the tie beam, the #5 vertical bars in grouted cells, the wall if devoid of reinforcement, the trusses with anchors, and the rat run with its diagonal support were not sufficient to meet the components and cladding wind loads.
Moreover, TA 18 truss anchors cannot serve the several purposes for accommodating loads at once, as Respondent contends in his proof. The nature of the connection of the diagonal braces to other structural elements is not stated in the plans. The nature of the lateral bracing is not conducive to being connected in an effective manner to accommodate stress transfer.
A ceiling diaphragm is not detailed. The ceiling material could not serve as a diaphragm. The ceiling integrity would not be effective as a diaphragm.
For these reasons, Respondent's performance was less than that expected of an engineer practicing in Florida.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter consistent with Sections 120.569 and 120.57(1), Florida Statutes.
This case contemplates the imposition of disciplinary action against the Respondent's license to practice as an engineer. Petitioner must prove that Respondent has violated Section 471.033(1), Florida Statutes, by engaging in negligence in the practice of engineering in the manner alleged. The quality of that proof must be clear and convincing. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence is defined in Solmowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA).
Rule 61G15-19.001, Florida Administrative Code, defines negligence in the practice of engineering as:
(4) 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 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.
Clear and convincing evidence was presented to prove that Respondent was negligent. Section 471.033(1)(g), Florida Statutes. He certified that the design for the Morse residence, complied with Section 1606 of the 1994 Standard Building Code, related to wind loads of a 100 mph. That decision did not take into account wind loads affecting components and cladding within the wall in question in preparing the plans or in their consequences. For reasons that have been described, the wall would not resist a 100 mph wind loading contemplated by use of the coefficients pertaining to components and cladding.
In accordance with Section 471.033(3), Florida Statutes, Respondent is subject to discipline. Guidelines for
the imposition of that discipline are set forth in Rule 61G15- 19.004(2)(m), Florida Administrative Code.
With this outcome, Respondent may be assessed costs related to the investigation and prosecution of this case, excluding attorney's time. Section 455.227(3)(a), Florida Statutes.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That Respondent receive a written reprimand and pay a fine in the amount of $1,000 and costs be assessed in accordance with Section 455.227(3)(a), Florida Statutes.
DONE AND ENTERED this 28th day of January, 2002, in Tallahassee, Leon County, Florida.
CHARLES C. ADAMS
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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2002.
COPIES FURNISHED:
David P. Rankin, Esquire
The Law Offices of David P. Rankin, P.A. 3837 Northdale Boulevard, Suite 332
Tampa, Florida 33624
Douglas Sunshine, Esquire
Florida Engineers Management Corporation 2507 Callaway Road, Suite 200
Tallahassee, Florida 32303
Natalie A. Lowe, Executive Director Board of Professional Engineers
Florida Engineers Management Corporation 2507 Callaway Road
Tallahassee, Florida 32303-5267
Hardy L. Roberts, III, General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-2202
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 14, 2002 | Agency Final Order | |
| Jan. 28, 2002 | Recommended Order | Respondent was negligent in preparing plans for a residence. |
