STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT CORPORATION,

Petitioner,

vs.

LAWRENCE L. GEORGE, P.E.,

Respondent.

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) Case No. 04-3224PL

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings, on November 16, 2004, in Lakeland, Florida.

APPEARANCES

For Petitioner: Bruce A. Campbell, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

For Respondent: Lawrence L. George, P.E., pro se

5920 Winewood Drive

Lakeland, Florida 33813 STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against Respondent's license as a professional engineer as a result of violations of Section 471.023 and Subsection 471.033(1)(g),

Florida Statutes (2004), as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

In a six-count Administrative Complaint dated June 16, 2004, Petitioner alleged that Respondent is a licensed professional engineer (P.E. or professional engineer) who performed engineering services for Atlantic Vinyl Windows and Doors, Inc. (Atlantic). The Complaint charges that from

June 2002 to January 2004, Respondent provided engineering opinions and analyses to confirm that particular windows complied with the Florida Building Code and provided calculations to show they were appropriate for use as replacement windows in specific buildings. The services were performed through an entity entitled Highlands Engineering, Inc. (Highlands), which did not have a certificate of authorization.

Respondent requested a formal hearing with a letter that contested allegations of particular paragraphs of the Administrative Complaint, but admitted certain allegations.

Numbered paragraphs of the Administrative Complaint that were admitted, in part, include that the mullions were not tested; that use of an importance factor of 0.77 was a misinterpretation of the code; and that Highlands did not have a certificate of authorization.

This matter was referred to the Division of Administrative Hearings (DOAH) on September 13, 2004, and this matter was set for hearing. Petitioner sought and received an Order dated November 1, 2004, amending the Administrative Complaint to clarify that the windows subject to Respondent's alleged verification and validation were Atlantic windows made with insulating glass. The final hearing was continued once at the request of Petitioner, and the final hearing was conducted on November 16, 2004.

At the hearing, eight exhibits were admitted as joint

exhibits:

J1. Letter from Respondent to Sol Minc dated June 24, 2002.

J2. Letter from Respondent to Sol Minc dated July 27, 2002.

J3. Vertical section under letterhead of Atlantic signed and sealed by Respondent on August 3, 2002.

J4. Window certification for Nine Forbes Place, Dunedin, Florida, signed and sealed by Respondent on August 3, 2002.

J5. Window certification for 634 Edgewater Drive, Dunedin, Florida, signed and sealed by Respondent on January 16, 2003.

J6. Window certification for Victoria Apartments, Dunedin, Florida, signed and sealed by Respondent on June 10, 2003.

J7. Thirteen sheets of work orders from Consumer Choice Home Improvements for windows for Victoria Apartments.

J8. Letter from Respondent to Jerry Ongley dated October 15, 2003, with attachments identified as Exhibit

No. 3, pages 167 to 232.

Petitioner offered five exhibits, which were received without objection:

P1. Photocopy of window label from Victoria Apartments.

P2. Resume of Joe Berryman, P.E.

P3. Florida Building Code Sections 1606, 1626, and 1707.

P4. Product approval pages from Florida DCA Building Code Information System internet site for Atlantic validated by Respondent.

P5. Deposition of Do Kim, P.E.

Petitioner presented the testimony of three witnesses: Paul Siddall, investigator; Joseph Berryman, P.E.; and Larry George, P.E., and offered the deposition testimony of Do Kim, P.E.

Respondent testified on his own behalf and submitted one exhibit that was received without objection:

R1. Wind calculations for project identified as Cassandra Res. (5 pages).

A Transcript was prepared and filed on November 29, 2004.

Each party had the opportunity to submit post-hearing submittals within ten days of the filing of the Transcript. Petitioner filed its Proposed Recommended Order on December 7, 2004.

Respondent has not filed a proposed recommended order as of the date of this Recommended Order.

FINDINGS OF FACT

1. At all times material to the allegations in the Administrative Complaint, Respondent, Lawrence L. George, P.E.,

   was a licensed professional engineer in the State of Florida, License No. PE21282.

2. Florida Engineer Management Corporation is charged with the duty of providing administrative, investigative, and professional services to the Board of Professional Engineers (Board). The Board is charged with regulating the practice of engineering in Florida.

3. On or about June 7, 2002, Respondent began to provide engineering services to Atlantic, a manufacturer of window and door units with glass encased in polyvinyl chloride frames, through the auspices of Highlands.

4. Highlands did not have a certificate of authorization until October 20, 2003.

5. Respondent provided to Atlantic a signed and sealed letter dated June 24, 2002, certifying that the Royal A-135 vinyl windows using laminated glass (two and one-eighth inch glass layers with one-eighth inch laminate) met the requirements of the 2001 Florida Building Code (the Code). Respondent's

   June 24, 2002, letter certified that the windows met the large missile/small missile impact requirements of the Code. The

   June 24, 2002, letter, certifying that the windows met the large missile/small missile impact requirements of the Code, as submitted, supported the conclusion that insulating glass windows manufactured by Atlantic complied with the Code.

6. Royal A-135 windows made by Atlantic are insulating glass windows. Insulating glass has two or more layers of glass separated by air spaces. Test data submitted for Royal A-135 insulating glass windows does not meet the missile impact test of the Code. Section 1606.1.4 of the Code and the tests referenced therein require testing of entire window assemblies to comply with the large missile/small missile impact tests. The Royal A-135 insulating glass windows manufactured by Atlantic were not tested as required by the Code.

7. At the final hearing, Respondent admitted that his engineering analysis in lieu of testing did not meet the requirements of the Code.

8. The June 24, 2002, letter was also submitted to the City of Dunedin Building Department as a representation that the Royal A-135 windows made by Atlantic met the Code as far as missile impact tests. The wind load analyses provided by Respondent to Atlantic were required to be filed with the building department of the City of Dunedin in order to get construction permits. Pursuant to the Code, the City of Dunedin is wholly within an area designated a wind-borne debris region.

9. On or about July 27, 2002, Respondent sent to Atlantic a signed and sealed letter that confirmed that a mullion detail satisfied the Code requirements in wind zones up to 140 mph wind speeds.

10. On or about August 3, 2002, Respondent signed and sealed a drawing on Atlantic stationery of a mullion detail. The mullion detail is for a structural element between individual window assemblies. It forms a connection extending the length of the windows. The mullions designed by Respondent were not tested to determine compliance with the Code.

11. On or about August 3, 2002, Respondent also provided to Atlantic a signed and sealed wind load analysis for the installation of replacement windows for a seventh floor apartment located at Nine Forbes Place, Dunedin, Florida (Forbes Place).

12. On or about January 16, 2003, Respondent provided to Atlantic a signed and sealed wind load analysis for the installation of replacement windows for a second-story apartment in a multi-story building located at 634 Edgewater Drive, Dunedin, Florida (Edgewater Drive).

13. On or about June 10, 2003, Respondent provided to Atlantic a signed and sealed wind load analysis for the installation of 150 replacement windows for a two-story apartment complex, Victoria Apartments at 1101 Victoria Drive, Dunedin, Florida (Victoria Apartments).

14. On or about January 6, 2004, Respondent submitted to the Florida Department of Community Affairs (DCA) a validation that the windows described in paragraph five complied with the

    Code. This validation was for the purpose of establishing the windows as "approved products," or standards, published on the Florida Building Code Information Systems' website for design professionals.

15. Respondent submitted test results to the DCA for laminated glass windows manufactured by other companies, but those tests do not support the conclusion that insulated glass windows made by Atlantic would pass the missile impact tests. Respondent never provided test results for laminated glass windows made by Atlantic.

16. Respondent did not provide an engineering design to show that the mullion would be directly connected to the substrate supporting the window. Respondent did not provide an engineering analysis to address deflection of the mullion under design pressure loads.

17. A mullion of the type certified in the July 27, 2002, letter was used in the Victoria Apartments. Respondent designed the mullions to be constructed on-site at the Victoria Apartments as the windows were installed.

18. The annealed glass insulating replacement windows for Victoria Apartments were not impact resistant.

19. The Victoria Apartments with the Atlantic replacement windows are partially enclosed structures within the meaning of the Code. Respondent did not provide calculations in the wind

    load analysis for Victoria Apartments to show that the structural elements of the apartments could resist design load for a partially enclosed building after replacement of all the windows.

20. It is not necessary to determine whether the mullions used at Victoria Apartments were integral parts of the units or connectors that had to be directly attached to the substrate. If the windows used integral mullions, they were not tested as required by the Code; if the windows employed mullions that were not integral, they were not engineered as required by the Code.

21. Wind load calculations for Forbes Place used one-third increase in allowable stress to the structure and assemblies, which is contrary to the Code. Wind load calculations for Forbes Place did not take into account the height of the building.

22. Wind load calculations for the Edgewater Drive project used an improper importance factor of 0.77. Use of an importance factor of 0.77 was a misinterpretation of the Code. Wind load calculations for Edgewater Drive did not take into account the height of the building.

23. Respondent did submit an application for product approval to the Florida Building Code Information System for Royal A-135 windows on or about January 6, 2004. The

    application for product approval included Respondent's letter of June 24, 2002.

24. The product approval system is a vehicle by which manufacturers can get statewide approval for products through a website operated by the Florida Building Commission. Beginning in 2003, manufacturers could submit documentation for particular products through the website. When the manufacturer submits its documentation, it may also present a validation through the website, such as the one Respondent presented in Exhibit P4.

25. After a product has been validated, the submission may be forwarded to the Florida Building Commission for approval, but the fact the validation appears on the website does not mean it has been approved.

26. Approval by the Florida Building Commission is limited to whether required documents have been properly filed; it does not mean that the documents submitted by the validating engineer contain technically correct information. Technical information and analysis is not reviewed by the Florida Building Commission.

27. The Board is the only entity currently charged with the responsibility to investigate whether a validating engineer has provided accurate engineering in a submission to the product approval system.

28. Respondent's June 24, 2002, letter is confusing and misleading in its references to both insulating and laminated glass.

29. Respondent had difficulty navigating the Florida Building Code Information System website and repeatedly submitted an application for product approval to authorities. Respondent continued to enclose the June 24, 2002, letter with the application to represent that insulating glass windows comply with the missile impact requirements of the Code. Continued use of the letter in his application process manifests continuing negligence or incompetence by Respondent.

30. However, Respondent, later in 2004, adopted procedures for submittal to local building departments that would better explain his wind load calculations.

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter pursuant to Sections 120.569 and 456.073 and Subsection 120.57(1), Florida Statutes (2004).

32. The Board is empowered to revoke, suspend, or otherwise discipline the license of a professional engineer for violation of Subsection 471.033(1), Florida Statutes (2004). The Florida Engineers Management Corporation provides

    professional services to the Board pursuant to Section 471.038, Florida Statutes (2004).

33. Subsection 471.033(1)(g), Florida Statutes (2004), provides that an engineer may be disciplined for engaging in fraud or deceit, negligence, incompetence, or misconduct in the practice of engineering.

34. Florida Administrative Code Rule 61G15-19.001(6) provides that misconduct in the practice of engineering shall include expressing an opinion publicly on an engineering subject without being informed as to the facts relating thereto, being competent to form an opinion thereupon, and being untruthful, deceptive, or misleading in any professional report.

35. Florida Administrative Code Rule 61G15-19.001(4) provides that negligence in the practice of engineering is the failure of an engineer to utilize due care in performing in an engineering capacity or signing and sealing documents that do not conform to acceptable engineering standards.

36. Florida Administrative Code Rule 61G15-31.002 provides that structural engineering documents shall 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.

37. Section 471.023, Florida Statutes (2004), provides that offering engineering services to the public through a

    corporation is permissible only if the corporation possesses a certificate of authorization issued by the Florida Engineers Management Corporation, pursuant to qualification by the Board.

38. Petitioner's burden in this case is to prove each of the allegations of the Amended Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v.

    Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

39. Petitioner has met its burden and proven that Respondent violated Subsection 471.033(1)(g), Florida Statutes (2004), by committing misconduct in submitting negligent verifications and validations that the insulating windows manufactured by Atlantic met the large missile/small missile impact tests required by the Code.

40. Respondent violated Subsection 471.033(1)(g), Florida Statutes (2004), by negligently failing to properly engineer windows with mullions or in failing to ensure that the windows with mullions were properly tested in compliance with the Code.

41. Respondent violated Subsection 471.033(1)(g), Florida Statutes (2004), by negligently submitting wind load calculations for Forbes Place that did not comply with acceptable engineering standards.

42. Respondent violated Subsection 471.033(1)(g), Florida Statutes (2004), by negligently submitting wind load

    calculations for Edgewater Drive that did not comply with acceptable engineering standards.

43. Respondent violated Subsection 471.033(1)(g), Florida Statutes (2004), by negligently submitting wind load calculations for Victoria Apartments that did not comply with acceptable engineering standards.

44. Respondent violated Subsection 471.033(1)(a), Florida Statutes (2004), by violating Section 471.023, Florida Statutes (2004), in providing engineering services through a corporation that did not have a certificate of authorization.

45. However, Respondent is not guilty of committing fraud or deceit for any of the counts in the Amended Administrative Complaint.

46. For each count of the violation of Subsection 471.033(1)(g), Florida Statutes (2004), by negligence or incompetence, the Board may impose discipline ranging from a reprimand and two-year probation to a five-year suspension and an administrative fine from $1,000 to $5,000. See Fla. Admin. Code R. 61G15-19.004(2)(m).

47. For a violation of Subsection 471.033(1)(a), Florida Statutes (2004), for practicing engineering through a corporation without a certificate of authorization, the Board may impose a reprimand. See Fla. Admin. Code R. 61G15- 19.004(2)(r).

48. The Board may deviate from the guidelines listed above for aggravating and mitigating circumstances. See Fla. Admin. Code R. 61G15-19.004(3).

49. In this case, aggravating circumstances include the repeated presentation of the June 24, 2002, letter to justify the use of windows that do not comply with the Code, resulting in the placement of 150 windows in one apartment complex.

50. The statewide scope of potential damage from use of the letter for validation on the product approval website is an aggravating factor. This factor is more severe because Respondent made the website application on January 6, 2004, months after he acknowledged in his October 15, 2003, letter that he was aware of the complaint that Section 1606.1.4 of the Code required actual testing of the exact product, although he had not acknowledged at that time that the Code did, in fact, require testing.

51. The aggravating factor of multiple submissions of faulty wind load calculations is partially offset by the fact Respondent later adopted procedures so that his wind load calculations would be accepted by local building officials.

52. In further mitigation, Respondent has been an engineer in Florida and four other states since 1974 and has not been previously disciplined by any state.

53. It is concluded that a penalty of a reprimand, six months' suspension, followed by five years' probation and an administrative fine of $12,000 is appropriate for these violations.

RECOMMENDATION

Based on the foregoing Findings and Fact and Conclusions of Law, it is

RECOMMENDED that the Board of Professional Engineering adopt the foregoing Findings of Fact and Conclusions of Law and enter a final order imposing a penalty of: a reprimand; six months' suspension, followed by five years' probation; and an administrative fine of $12,000, plus the costs of these proceedings.

DONE AND ENTERED this 21st day of December, 2004, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 21st day of December, 2004.

COPIES FURNISHED:

Bruce A. Campbell, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Lawrence L. George, P.E. 5920 Winewood Drive

Lakeland, Florida 33813

Teresa Baker, Clerk

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Doug Sunshine, Esquire

Vice President for Legal Affairs

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Leon Biegalski, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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

Professional Regulation 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: 04-003224PL

Orders for Case No: 04-003224PL