vs.
ROBERT L. PLOWFIELD, P.E.,
Respondent.
) Case No. 04-4117PL
On May 19, 2005, a formal administrative hearing was held in Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Douglas D. Sunshine, Esquire
For Respondent: David P. Rankin, Esquire
Law Offices of David P. Rankin, P.A. 18540 North Dale Mabry Highway
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.
By Amended Administrative Complaint dated June 1, 2004, the Florida Engineers Management Corporation (Petitioner) charged Robert L. Plowfield, P.E. (Respondent), with "violating Section 455.227(1)(q), Florida Statutes, by violating Section 471.033(1)(g), Florida Statutes, to wit: engaging in negligence in the practice of engineering."
Specifically, paragraph seven of the Amended Administrative Complaint alleged errors in the Respondent's plans for construction of the Hunter's Creek Community Association Town Hall as follows:
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 commencement of the hearing, the Petitioner moved to correct a scrivener's error in the Amended Administrative Complaint to clarify that the allegation set forth in paragraph 7a was a violation of Chapter 1707.3 of the 1997 Standard Building Code. The parties agree that Chapter 1701.3 does not exist. Paragraph 7b sets forth essentially the same allegation, but cites to the correct section. The Petitioner's motion was granted.
At the hearing, the Petitioner presented the testimony of one witness and had Exhibits numbered 1 through 3 and 5
through 11 admitted into evidence. The Respondent testified on his own behalf and presented the testimony of one witness.
37 were admitted into evidence.
The Transcript of the hearing was filed on June 7, 2005. As stipulated by the parties, Proposed Recommended Orders were filed on July 8, 2005.
At all times material to this case, the Respondent was a Florida licensed professional engineer, holding license number PE 39759.
In 2002, the Petitioner undertook an evaluation of the Respondent's design for construction of the Hunter's Creek Community Association Town Hall. The design was completed in 2001.
The Respondent submitted the plans at the Petitioner's request and pursuant to a Final Order filed January 10, 2000, by the Florida Board of Professional Engineers. The Final Order required the Respondent to periodically submit a list of completed project designs to the Petitioner. The Petitioner selected project designs at random for review. The Final Order also directed the Respondent to comply with various statutory requirements.
Following its review of the submitted plans and additional dialogue with the Respondent, the Petitioner brought the instant disciplinary proceeding against the Respondent.
Section 1601.2.1 of the 1997 Standard Building Code requires that structures "be of sufficient strength to support the loads and forces encountered, or combinations thereof, without exceeding in any of its structural elements the stresses prescribed elsewhere in this code."
Design of a structure must accommodate the various loads to a proposed structure. The "gravity load" is the weight of the structure itself. The "live load" is the transient weight of the objects (persons, furnishings, vehicles, etc.) within the structure. "Lateral loads" are horizontal forces generated against a structure by such natural forces as earthquakes or hurricanes. "Vertical loads" consist of uplift- type wind forces.
Acceptable standards of engineering practice require that a professional engineer design the structure to accommodate the various loads without exceeding the allowable load values of the components. Essentially the allegations against the Respondent are that according to the plans submitted, allowable load capacities for certain materials specified in the plan were exceeded and that some materials were improperly specified.
Insofar as is relevant to this proceeding, the plans specified use of Simpson H-3 framing anchors ("Simpson H-3 anchor") at three locations, a 49'-4" wall and two 20'-0" walls. The plans also specified use of Simpson MGT anchors at a number of locations.
The Simpson H-3 anchor was an 18 gauge metal plate, commonly referred to as a "hurricane tiedown." The Simpson H-3 anchor was used to connect a wooden truss to a wooden sill plate or to the top part of a wall. The manufacturer identified the
lateral load design capacity of each Simpson H-3 anchor as 125 pounds-per-linear- foot.
The Simpson MGT anchor was a "medium girder tiedown" anchor. The Simpson MGT anchor consisted of a heavy-gauge metal plate and metal straps used to connect a masonry wall to a girder.
At the hearing, the Petitioner presented the testimony of Joseph Berryman, P.E. Mr. Berryman testified that according to the project plans, 54 H-3 anchors were specified for the
49'-4" wall. Mr. Berryman testified that dividing the load calculation identified in the Respondent's plans by the specified number of anchors resulted in a load of approximately
245 pounds-per-linear-foot.
Mr. Berryman testified that application of the same calculation to the load identified in the project plans for the two 20'-0" walls resulted in a load of approximately 380 pounds-per-connector. Mr. Berryman further testified, after additional review of the Respondent's documentation, that his original identification of the load to be accommodated at the two 20"-0" walls was incorrect and that the actual load per connector was in excess of his initial calculation.
The Respondent provided testimony and evidence indicating that Mr. Berryman's analysis was overly conservative and failed to consider the load-carrying capacities of other
structural elements. Such elements included the Simpson MGT anchors and portions of the building, such as walls and floors, that reduce the load being transferred to the Simpson H-3 anchors.
The Respondent testified that the Simpson MGT anchor was capable of resisting a lateral load of 2,462 pounds. The Respondent offered the testimony of Wilbur Yaxley, P.E., who stated that the Simpson MGT anchor was capable of resisting a lateral load of 4,541 pounds. The manufacturer of the Simpson MGT anchor has not rated the device for lateral load resistance.
There was no credible evidence that the Respondent accurately calculated the lateral load being applied to the H-3 anchors at the time of design. There was no credible evidence that any lateral load resistance calculation or testing was performed on the Simpson MGT anchor prior to construction of the structure at issue in this case.
The Respondent further asserted that substantial load resistance was achieved through the "continuity" of the structure, but acknowledged that no calculations related to continuity were performed prior to construction of the project.
Absent any credible evidence of reliable pre- construction calculation of the relevant load-bearing capacities of the Simpson MGT anchor or of the structural continuity of the
design, Mr. Berryman's testimony regarding the plans submitted and the loads identified is accepted.
Based on the plans submitted by the Respondent to the Petitioner, the evidence establishes that the actual design loads for the Simpson H-3 anchors at the 49'-4" wall and the two 20'-0" walls exceeded the allowable design loads of the anchors.
The Petitioner further alleges that the Simpson MGT anchors were not "listed" at the time of permitting and construction and, therefore, could not have been installed in accordance with such listing. There is no credible evidence that any witness actually reviewed a "list" to determine whether or not the Simpson MGT anchors were listed. Notwithstanding building code references to "listed" materials, the evidence fails to establish the existence of such a list.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).
The Petitioner is a not-for-profit agency created pursuant to Section 471.038, Florida Statutes (2004), and responsible for prosecution of disciplinary cases against professional engineers practicing in the State of Florida.
The Petitioner has the burden of proving by clear and convincing evidence the factual allegations set forth in the
Administrative Complaint against the Respondent. Department of Banking and Finance, Division of Securities and Investor
Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence is that which is credible, precise, explicit, and 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 hesitancy, as to the truth of the allegations. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
In this case, the burden is met as to the allegations regarding usage of the Simpson H-3 anchors set forth in paragraphs 7a and 7b of the Amended Administrative Complaint.
The Petitioner has charged the Respondent with violating Subsection 455.227(1)(q), Florida Statutes (2004), by violating Subsection 471.033(1)(g), Florida Statutes (2004), by engaging in negligence in the practice of engineering.
Subsection 455.227(1)(q), Florida Statutes (2004), provides in relevant part as follows:
455.227 Grounds for discipline; penalties; enforcement.--
(1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(q) Violating any provision of this chapter, the applicable professional practice act, a rule of the department or the board, or a lawful order of the department or the board, or failing to comply with a lawfully issued subpoena of the department.
In the Final Order filed January 10, 2000, the Petitioner was directed to abide by the terms of a settlement stipulation dated October 15, 1999. One of the terms of the stipulation was a requirement that the Respondent abide by the requirements of Chapters 455 and 471, Florida Statutes (2004).
Subsection 471.033(1)(g), Florida Statutes (2004), 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 fraud or deceit, negligence, incompetence, or misconduct, in the practice of engineering.
Florida Administrative Code Rule 61G15-19.001(4) provides that in applying Subsection 471.033(1)(g), Florida Statutes (2004), negligence is 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."
Where the licensee is charged with a violation of professional conduct and the specific acts or conduct required of the professional are explicitly set forth in the statute or valid rule promulgated pursuant thereto, the burden on the agency is to show a deviation from the statutorily-required acts; but where the agency charges negligent violation of general standards of professional conduct, i.e., the negligent failure to exercise the degree of care reasonably expected of a professional, the agency must present expert testimony that proves the required professional conduct, as well as the deviation therefrom. Purvis v. Department of Professional Regulation, 461 So. 2d 134 (Fla. 1st DCA 1984).
The acceptable standards of engineering practice require that a professional engineer design the structure to accommodate the various loads without exceeding the allowable load values of the components. In order to determine whether load values were exceeded, a professional engineer would be required to perform appropriate calculations to determine the loads being applied to various components and to ascertain the load capacities of the components. In this case, the evidence establishes that the Respondent failed to meet the acceptable standard of engineering practice by failing to perform appropriate load calculations in the design of the Hunter's Creek Community Association Town Hall. Based on the project
plans submitted by the Respondent to the Petitioner, the actual design load for the Simpson H-3 anchors exceeded the allowable per-connector design load as alleged in paragraphs 7(a) and 7(b) of the Amended Administrative Complaint.
Although the Respondent asserted that the Petitioner failed to consider the load resistance being provided by other structural elements of the building, the evidence fails to establish that any reliable quantification of load resistance offered by the Simpson MGT anchors, or by structural continuity, was performed prior to or at the time of project design.
The burden has not been met as to paragraph 7c of the Amended Administrative Complaint, which alleges that the Simpson MGT framing anchors "were not listed at the time of permitting and construction and, therefore, could not have been labeled, listed or installed in accordance with such a listing as required by Chapter 2306.2 of the 1997 Standard Building Code."
Section 1707.3.1 of the 1997 Standard Building Code requires, in relevant part, that joist hangers, framing anchors, and similar devices must be properly tested and "be labeled and listed for their load-carrying capacity."
Section 2301 of the 1997 Standard Building Code, "governs the material, design, quality, and construction of wood used in buildings or structures." Section 2306.2 provides, as follows:
Where framing anchors, clips, staples, glues, or other methods of fastening are used, they shall be labeled, listed and installed in accordance with their listing.
Section 202 of the 1997 Standard Building Code defined "labeled" as follows:
LABELED. Devices, equipment or materials to which have been affixed a label, seal, symbol or other identifying mark of a nationally recognized testing laboratory, inspection agency or other organization concerned with product evaluation that maintains periodic inspection of the production of the above labeled items and by whose label the manufacturer attests to compliance with applicable nationally recognized standards.
Section 202 of the 1997 Standard Building Code defined "listed" as follows:
LISTED. Equipment or materials included in a list published by a nationally recognized testing laboratory, inspection agency or other organization concerned with product evaluation that maintains periodic inspection of production of listed equipment or materials, and whose listing states either that the equipment or material meets nationally recognized standards or has been tested and found suitable for use in a specified manner. The means for identifying listed equipment may vary for each testing laboratory, inspection agency, or other organization concerned with product evaluation, some of which do not recognize equipment as listed unless it is also labeled. The building official should utilize a system employed by the listing organization to identify a listed product.
The cited portions of the Standard Building Code clearly indicate that a list of materials meeting relevant standards is maintained by some entity. The only evidence offered by the Petitioner related to this point consisted of Mr. Berryman's testimony regarding telephone calls he made to determine whether or not the Simpson MGT anchor was listed. His testimony was uncorroborated hearsay and is insufficient to support a Finding of Fact. See § 120.57(1)(c), Fla. Stat. (2004).
Section 471.033(3), Florida Statutes (2004), provides,
as follows:
(3) When the board finds any person
guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
Denial of an application for licensure.
Revocation or suspension of a license.
Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify.
Restriction of the authorized scope of practice by the licensee.
Restitution.
Florida Administrative Code Rule 61G15-19.004 provides guidelines for imposition of discipline against professional engineers. Florida Administrative Code Rule 61G15-19.004(2)(m) sets forth a range of penalties specifically applicable to a violation of Subsection 471.033(1)(g), Florida Statutes (2004). The penalties range from a minimum of a reprimand, a $1,000 fine, and two-year probation, to a maximum of reprimand, $5,000 fine, five-year suspension and ten-year probation. Although Florida Administrative Code Rule 61G15-19.004(3) sets forth aggravating and mitigating circumstances which can justify deviations from the guidelines, the evidence presented at hearing suggests that an appropriate penalty may be determined from within the guidelines.
RECOMMENDED that the Board of Professional Engineers enter a final order finding Robert L. Plowfield, P.E., guilty of violating Section 471.033(1)(g), Florida Statutes (2004), and imposing a penalty of reprimand, $5,000 fine, two-year suspension, and a six-year probation.
DONE AND ENTERED this 8th day of August, 2005, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2005.
Douglas D. Sunshine, Esquire
David P. Rankin, Esquire
Law Office of David P. Rankin, P.A. 18540 North Dale Mabry Highway Lutz, Florida 33548
Paul J. Martin, Executive Director Board of Professional Engineers
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.
