STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT CORPORATION,

Petitioner,

vs.

NICHOLAS W. NICHOLSON,

Respondent.

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) Case No. 03-0731PL

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RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) held a formal hearing in this cause in Brooksville, Florida, on June 5, 2003.

APPEARANCES

For Petitioner: Douglas Sunshine, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

For Respondent: David P. Rankin, Esquire

The Law Offices of David P. Rankin, P.A. 14502 North Dale Mabry Boulevard

Suite 300

Tampa, Florida 33618 STATEMENT OF THE ISSUE

The issue for determination is whether Respondent negligently practiced engineering in the preparation of construction plans for a residential structure and airplane hanger.

PRELIMINARY STATEMENT

On or about January 7, 2003, the Florida Engineers Management Corporation (Petitioner), filed an Administrative Complaint charging Respondent with negligence in the practice of engineering in the preparation of construction plans for a residential structure and airplane hanger.

Petitioner timely requested a formal administrative hearing with regard to the two charges in the Administrative Complaint.

Subsequently, on March 3, 2003, the case was forwarded to DOAH for formal proceedings.

During the final hearing, Petitioner presented one expert witness and three exhibits. Respondent testified on his own behalf and presented two expert witnesses and one exhibit. The transcript of the proceedings was filed with DOAH on September 3,

2003.

The parties requested and were granted leave to file proposed

recommended orders more than 10 days after the filing of the transcript. Those Proposed Recommended Orders have been reviewed and considered in the preparation of this Recommended Order.

All citations are to Florida Statutes (2002), unless otherwise indicated.

FINDINGS OF FACT

1. At all times pertinent to these matters, Respondent has been a licensed engineer in the State of Florida, having been issued license number PE 37862.

2. Respondent is the engineer of record for the residential and airplane hanger project (Rutman project). On Sheet 6 of 8 of the drawings prepared for the Rutman project, Respondent failed to reference sections or details found in the plan for the project. Specifically, Sheet 6 indicates the floor truss layout for the ground and second floors, but fails to indicate what the framing members are supported upon, a very significant fact, in that one who is reading the plan would not be instructed in how to construct that portion of the work.

3. On Sheet 5 of 8, which indicates the layout of the framing members of the roof, no specific information is provided showing how to construct, support or connect the members and no reference is made to any other parts of the plans.

4. Respondent's drawings fail to specify or indicate anywhere on the plans the proper reinforcing for the masonry column. On Sheet 2 of 2 - Hanger, and on Sheet 1 of 3 - Floor Plan, Respondent has called for a 24-inch by 24-inch reinforced masonry column that supports a W24 x 55 Steel I-beam that is

   48 feet 8 inch long. There is no specification for column ties, which are reinforcing bar loops that are to be placed around the

   vertical steel within a column, as required by the American Concrete Institute's Code (ACI) provision 530.

5. ACI 530 is used by all engineers in Florida that design masonry columns. These technical codes for concrete have been provided by ACI since 1904. ACI 530, Section 5.9.1.6(a), relating to lateral ties, provides that longitudinal reinforcement shall be enclosed by lateral ties at least 1/4 inch in diameter. Respondent's drawings fail to provide the required lateral ties.

6. According to ACI 530, Section 5.9.1.4, vertical column reinforcement must not be less than .0025 times the nominal area of the column or approximately 1.44 square inches of steel. Respondent's drawing provides only 1.24 square inches of steel.

   CONCLUSIONS OF LAW

   
   

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

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

9. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent.

   Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met.

10. Petitioner has charged Respondent with violation of Section 471.033(1)(g), 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:

    
    

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

    
    

11. "Negligence" is defined as :

    
    

    [T]he 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.

    
    

    Fla. Admin. Code R. 61G15-19.001(4).

    
    

12. Rule 61G15-31.002(5), Florida Administrative Code, requires that "structural engineering documents" provide construction requirements "to indicate the nature and character of the work and to describe, detail, label and define the structure's components, systems, materials, assemblies, and equipment."

13. Respondent's plans failed to conform to acceptable engineering standards and do not safeguard the life, health, property and welfare of the public.

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 Respondent for negligence in this matter, and placing him on probation for a period of two years.

DONE AND ENTERED this 28th day of October, 2003, in Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 October, 2003.

COPIES FURNISHED:

David P. Rankin, Esquire

The Law Offices of David P. Rankin, P.A. 14502 North Dale Mabry Boulevard, Suite 300 Tampa, Florida 33618

Douglas Sunshine, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

Nancy Campiglia, General Counsel Department of Business and

Professional Regulations Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and

Professional Regulations 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

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: 03-000731PL

Orders for Case No: 03-000731PL