STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS )

MANAGEMENT CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 01-0625PL

)

PHILLIP J. MATONTE, P.E., )

)

Respondent. )

)

RECOMMENDED ORDER

On November 15, 2001, a formal administrative hearing in this case was held in Clearwater, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

For Respondent: J. Robert Griffin, Esquire

Tilton & Metzger, P.A.

1435 East Piedmont Drive, Suite 210

Tallahassee, Florida 32308 STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner against the

Respondent are correct and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated December 27, 2000, the Florida Engineers Management Corporation (Petitioner) charged that Phillip J. Matonte, P.E. (Respondent) was negligent in the practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes. The Respondent disputed the allegations and requested a formal hearing. The Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of two witnesses and had Exhibits numbered 1-4 admitted into evidence. The Respondent testified on his own behalf and presented the testimony of one witness. One joint exhibit was admitted into evidence.

After considerable delay, a Transcript of the hearing was filed on January 22, 2002. Both parties filed Proposed Recommended Orders that were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Respondent is a Florida licensed professional engineer, holding license number PE 45941.

2. There have been no prior disciplinary proceedings against the Respondent.

3. The Respondent acted as the general contractor in the construction of his personal residence, which is the structure at issue in this proceeding. There is no evidence that the structure, as built, fails to meet applicable standards and requirements.

4. On December 16, 1999, the Respondent submitted to the City of Clearwater Building Department, 29 sheets of building plans for alterations to the Respondent's residence.

5. Of the 29 sheets, three were apparently signed and sealed by an engineer identified as Shields E. Clark, P.E., who did not testify at the hearing.

6. Nineteen of the 29 sheets contain the statement, "[a] windload review of this plan has been made by Shields E. Clark,

   P.E. and it is certified to be in compliance with Section 1606 of the Standard Building Code 1994."

7. The plans apparently confused the Clearwater Building Department official who reviewed the material. He asked the Respondent to meet with him and explain the project. The meeting occurred on or about January 10, 2000. During the meeting, the Respondent signed and sealed 22 of the 29 sheets; afterwards, the reviewing official noted they were unsigned.

8. Four sheets of the initial plans were not signed and sealed by anyone.

9. The Clearwater Building Department relies on the engineering certification in determining whether plans should be approved. The Respondent signed and sealed the plans as a professional engineer and the plans were approved.

10. As to all of the plans submitted by the Respondent to the Clearwater Building Department, the Petitioner presented the expert testimony of James Owen Power, a Florida licensed engineer. Mr. Power's testimony was persuasive and is credited. (Sheet numbers identified herein reference the page numbers in Joint Exhibit 1.)

11. According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on December 16, 1999.

12. The deficiencies noted by Mr. Power include: the failure to specify which of two methods was used in calculating compliance with Southern Building Code windload requirements; depiction of a three-foot overhang projection on sheet 12 which is not depicted on other pages in the same plans; lack of a footing under a center post (sheet 19); lack of a beam at the center post to indicate what is being supported (sheet 21); inadequate support of the center post (sheet 22); a failure to provide for transfer of a portion of the roof load to an appropriate support (sheet 22); inadequate support for the load

    being carried (sheet 23); and depiction of a sample wall section atypical of all conditions throughout the proposed construction.

13. On March 15, 2000, the Respondent submitted a 22-page set of drawings to the Clearwater Building Department that appear to have been signed and sealed by the Respondent on March 14, 2000.

14. According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on March 15, 2000.

15. The deficiencies noted by Mr. Power include: the failure to indicate whether differences in foundation, floor and roof framing, between the initial plan submission and the

    March 15 submission, were to be regarded as substituted plans or changes to the initial plans; the failure on five sheets to refer to windload certification; the failure to correlate position of cross beams to posts (sheet 43); differing numbers and locations of cross beams within the plan submission

    (sheets 43 and 44); a cantilevered wall that is identified without appropriate detailing; omission on sheet 45 of a "transverse" beam depicted on sheet 44; depiction of a wall not previously shown and two previously un-shown beams over the garage door (sheet 46); the appearance of a previously un-shown and unspecified pipe column in the middle of the garage opening (sheet 46); the lack of proper identification of a post and partition depicted on the column view (sheet 47); inconsistent

    identification of the dimensions of a balcony overhang

    
    

    (sheets 43, 49 and 52); and alteration of original rafter sizes without notice of the change (sheet 63).

16. On March 28, 2000, the Respondent submitted an 11-page set of drawings and two sheets of cost estimates to the Clearwater Building Department that appear to have been signed and sealed by the Respondent on March 28, 2000.

17. According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on March 28, 2000.

18. The deficiencies noted by Mr. Power include: omission of a footing and pipe column depicted in the second set of plans without notification of change (sheet 31); the inability to determine the intent of "back addition lower plan" (sheet 32); alteration of the notation of a wall from the second set of plans (sheet 33); inconsistent depiction of the new wall foundation at the left side of the structure (sheet 33); inconsistent identification of the footing at the center of the garage opening (sheets 31, 33, and 34); inconsistent depiction of footers (sheets 34 and 35); inconsistent depiction of columns and beams (sheets 33, 34 and 35); and alteration in the manner of depicting partitions within the structure from the depiction contained in the initial submission (sheet 37).

19. On June 12, 2000, the Respondent submitted another 11- page set of plans to the Clearwater Building Department that

    appear to have been signed and sealed by the Respondent on March 28, 2000.

20. According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on June 12, 2000.

21. The deficiencies noted by Mr. Power include: identification of beams as "optional" without defining the requirements of either option (sheets 64 and 65); depiction of knee braces not previously identified in previous plans

    (sheet 65); inconsistent depiction of partitions (sheets 65 and 69); alteration of wall width from second plan submission without adequate notification of change (sheets 49 and 66); depiction of knee braces without proper consideration of lateral load (sheet 66); depiction of a diagonal structure the intent of which is unclear (sheet 68); inconsistent depiction of a center joist (sheets 38 and 69); alteration to the previous depiction of rafters without notification (sheet 67); deletion of footing and a column in the center of the garage opening without notification (sheets 68 and 70); and the addition of a door to the left of the garage opening without notification of change from prior submissions.

22. The Respondent's building plan submissions fail to meet professional standards. Structural elements were added, altered, and deleted without appropriate notification, and within submissions, elements were inconsistently depicted. The

    Respondent's failure to meet professional standards resulted in building plans that were ambiguous and unclear.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

24. The Petitioner is a not-for-profit agency created pursuant to Section 471.038, Florida Statutes, responsible for prosecution of disciplinary cases against professional engineers practicing in the State of Florida.

25. The Petitioner has the burden of proving by clear and convincing evidence the allegations against the Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met.

26. The Petitioner has charged the Respondent with violation of Section 471.033(1)(g), Florida Statutes, which provides in relevant part as follows:

    471.033 Disciplinary proceedings.--

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

    
    

    * * *

    
    

    (g) Engaging in . . . negligence . . . in the practice of engineering.

    
    

27. The evidence in this case establishes that the Respondent was negligent in preparing and submitting plans to

    the City of Clearwater Building Department. The plans that the Respondent signed, sealed, and submitted were inadequate to properly identify the intent of the proposed construction.

28. The Respondent suggests that plans were appropriate because he was utilizing a construction method identified as "design-build" rather than "design-bid." There is no evidence that the "design-build" construction process permits an engineer to sign and seal building plans that contain deficiencies such as those identified herein. In either construction method, construction plans must be sufficient to communicate the designer's intentions.

29. The Respondent asserts that, because he was acting as the general contractor in the construction of the residence, he was aware of the proposed structure and that deficiencies could be easily addressed by "field practice" during construction. While minor issues can be addressed by field practice, in this case, the issues are not minor but rather involve issues of structural support and dimension.

30. The Respondent also asserts that any experienced building inspector knowledgeable about adopted building codes could determine the intent of the plans and understand that the structure would meet appropriate construction requirements. The evidence fails to support the assertion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a final order reprimanding Phillip J. Matonte, P.E., for negligence in this matter, and placing him on probation for a period of two years.

DONE AND ENTERED this 11th day of April, 2002, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 11th day of April, 2002.

COPIES FURNISHED:

Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

J. Robert Griffin, Esquire Tilton & Metzger, P.A.

1435 East Piedmont Drive, Suite 210

Tallahassee, Florida 32308

Natalie A. Lowe, Executive Director Florida Board of Professional Engineers 2507 Callaway Road, Suite 200

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.

Docket for Case No: 01-000625PL

Orders for Case No: 01-000625PL