Judges: K. N. AYERS
Agency: Department of Business and Professional Regulation
Latest Update: Jul. 18, 1978
Summary: Respondent signed and sealed plans without assuring they were adequate. They were not in his area of expertise. Recommend suspension.
76-1792.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA STATE BOARD OF ) PROFESSIONAL ENGINEERS AND LAND ) SURVEYORS, )
)
Petitioner, )
)
vs. ) CASE NO. 76-1792
)
CLARENCE L. KIMBALL, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on March 16, 1977 in Ft. Myers, Florida.
APPEARANCES
For Petitioner: Ford L. Thompson, Esquire
701 Lewis State Bank Building Tallahassee, Florida 32304
and
Selig I. Goldin, Esquire Post Office Box 1215 Gainesville, Florida
For Respondent: Steven Buckley, Esquire
Post Office Box 2366
Ft. Myers, Florida 33901
By Administrative Complaint filed July 20, 1976 the Florida State Board of Professional Engineers and Land Surveyors (Board) seeks to revoke, suspend, or otherwise discipline Respondent, Clarence L. Kimball, Registered Professional Engineer No. 9427. As grounds therefor it is alleged that Respendent affixed, or permitted to be affixed, his name and seal to plans which were not prepared by him or under his supervision, direction or control; that Respondent prepared or permitted to be affixed his name and seal to two complex projects, to wit: Pointe South Condominium and classroom building addition to First Assembly of God Church without having demonstrated his qualification either by training or experience to undertake the structural plans for such projects; and that registrant performed architectural services and prepared architectural plans for the above two complex projects which plans constitute the practice of architecture beyond that incidental to the practice of engineering. The Administrative Complaint alleges that by reason of these acts Respondent violated Section 471.26(1)(f) and 467.09 F.S. Since there is no sub-chapter (f) and the facts allege a violation of (e), it, is obvious that the charge alleged is a violation of Section 471.26(1)(e) F.S. The Complaint further alleges that
the complex structural plans contain serious and hazardous inadequacies or deficiencies thereby violating Rule 21H-14.02 F.A.C.
At the hearing Petitioner withdrew Paragraph 1(a) of the Complaint involving Zip-Z Ice Cream Store plans. Thereafter six witnesses were called by the Board, and twelve exhibits were offered into evidence. Respondent presented no evidence. Near the close of the hearing Petitioner advised that Count III of the Complaint, involving the charge of practicing architecture, would be presented by the Board of Architecture whose representatives were scheduled to arrive before noon. Shortly after both Petitioner and Respondent had rested their cases representatives of the Board of Architecture arrived with an explanation of unavoidable delay. One witness from the Board of Architecture was allowed to testify over the objection of Respondent that the hearing had been concluded before they arrived.
During the hearing Exhibit 6, a copy of an application for building permit in Collier County and Exhibit 8, the testimony of Respondent given before the Board on March 12, 1976, were offered into evidence and upon objection by the Respondent, rulings on the admissibility of Exhibit 6 and 8 were reserved.
Exhibit 6 is now admitted into evidence. A review of Exhibit 8 discloses that Respondent was advised of his right not to testify before the Board and of his right to be represented by counsel. Since most of the testimony of Respondent contained in Exhibit 8 consists of admissions by Respondent, Exhibit 8 is admitted.
FINDINGS OF FACT
Mr. George O'Green hired Len Berlin, who he thought was a registered architect, to prepare plans for a commercial building he desired to erect at Naples, Florida. After the plans had been completed O'Green learned that Berlin was not registered and the county would not accept his plans. Berlin thereafter presented O'Green with the same plans containing the seal and signature of Respondent. In his answer to the Administrative Complaint Respondent admitted that he checked, corrected, and signed the plans brought to him by O'Green so O'Green could get his building permit, although the plans were not prepared by Respondent or prepared under his supervision or control. O'Green testified that he did not meet Respondent until after the permit had been obtained.
Martin Waxman, a draftsman, is a member of the First Assembly of God Church in Ft. Myers and volunteered to prepare certain plans as a contribution to the church for the proposed addition to the church. Waxman prepared Site Plan, Foundation Plan, Elevations, kitchen cabinet elevations and three wall sections. Waxman had no connection with Kimball and after preparing the plans be gave them to the pastor of the church. Thereafter Kimball, after checking the plans and making some minor changes, placed his seal and signature on these plans.
In his testimony given before the Board (Exhibit 8) Respondent admitted that the structural plans for Pointe South Condominiums signed by him had been prepared by a draftsman who contacted Respondent to get his seal and signature on the plans, and that he was not contacted directly by the owners of the building. He further admitted that the foundation plans were done by a structural engineer not registered in Florida since he did not consider himself fully qualified in this field. However, these plans all contained Kimball's seal and signature.
Respondent obtained his degree in electrical engineering and worked for a power company for 17 years before going into business for himself in 1968. He has had no training in structural design but has acquired certain experience erecting small waste treatment plants and two-story dwellings. He is familiar with various engineering manuals which contain tables used by engineers in determining design criteria for various structures.
The Pointe South Condominium is a precast concrete masonry six-story structure containing 6500 square feet per floor with reinforced masonry bearing walls. The plans did not contain roof construction detail, provide design load for which the roof was to be designed, or indicate horizontal loads for which the roof was to be designed.
Similarly the plans for the precast floor construction was lacking information on design requirements in that horizontal load requirements were not shown.
Of more serious import in this building is the foundation details which show foundation to be less than 50 percent adequate. The gravity loads alone amount to more than the foundation was designed for and a safety factor of 2.5 to 4 is normally used in this type structure.
The design plans for the church addition were also inadequate. There the second floor is supported by steel joists 4 feet apart without any bridging to increase the stability. The spacing of these joists is such that additional details are required on the plans approved by Respondent. Although designated as classroom on the plan it is large enough for an auxiliary assembly area and the plans do not provide adequate strength for this purpose, thus creating a hazardous condition.
The roof design is not complete as to detail in the same manner as noted above for the condominium.
A canopy attached to the building wall covering a walkway is inadequately supported by the 4" x 3/8" lag bolts provided on the plans to secure this canopy. Nothing in the canopy design was provided to resist distortion of the canopy in high winds. The additional stresses thereby created results in a hazardous situation.
With respect to Charge III that Respondent was performing work constituting the practice of architecture, one witness opined that the plans for the Pointe South Condominium involved the practice of architecture as architects have traditionally performed this type of work. This witness considered it unauthorized practice of architecture for any engineer to design, plan, and build any church, multiple family housing or multiple storage structure. Respondent acknowledges that approximately 25 percent of the design of this condominium involves architecture but considers this as incidental to the major structural design that is performed by engineers.
CONCLUSIONS OF LAW
Section 471.26 F.S. pertains to professional engineers and provides in pertinent part:
The Board shall have the power to revoke or suspend a certificate of registration or a certificate of authorization of any person
registered under this chapter, or to place such person or firm on probation for a stipulated period of time . . . should such registrant . . . be found guilty of:
Violation of any of the rules of professional conduct adopted and promulgated by the Board or violation of rules or regulation made by the Board pursuant to law.
Affixing or permitting to be affixed his seal or his name to any plans, designs, drawings, or specifications which were not prepared by such registrant or under his
responsible supervision, direction, or control."
Rule 21H-14.06 F.A.C. relates to competency of assignments undertaken and approved by the engineer and provides in part:
"(1) The Engineer shall undertake to perform engineering assignments only when qualified by training and experience in the specific technical field of professional engineering involved.
(2) The Engineer shall not affix his signature or seal to any engineering plan or document in the subject matter of which he lacks competence by virtue of training and experience.
The evidence that Respondent placed his seal and signature on plans prepared by others who were not under his direct control or supervision, as alleged in the Administrative Complaint, was unrebutted. Respondent's contention that he checked these plans for accuracy and corrected them where necessary to comply with the appropriate building codes is not a defense to a violation of Section 471.26(1)(e) F.S. above quoted. By his own admission Respondent has little experience or training in structural engineering and relied upon another engineer, unlicensed in Florida, to do structural plans upon which Respondent placed his seal and signature. This constitutes a violation of Rule 21H-14.06(2) F.A.C. and Section 471.26 (1)(d) F.S. above quoted.
Furthermore the structural errors made in the plans sealed and signed by Respondent for the church addition and Pointe South Condominium clearly demonstrates Respondent's lack of competency in the field of structural engineering. Undertaking to perform engineering work in a field in which one is not qualified constitutes a violation of Rule 21B-14.06(1) F.A.C. and Section 471.26(1)(d) F.S.
With respect to the allegation in the complaint that Respondent performed architectural services and prepared architectural plans, which plans constituted the practice of architecture beyond that purely incidental to the performance of his engineering practice contrary to Section 467.09 and Chapter
471 F.S., no evidence was submitted that the architectural work was not incidental to the engineering work. Chapter 471 F.S. pertains to professional engineers and Chapter 467 F.S. pertains to architects. A registered architect can plan and design and supervise construction of a building as the practice of architecture and a registered professional engineer can plan and design and supervise construction of a building as a professional engineer. Verich and De
Bartolo et al v. The Florida State Board of Architecture, 239 So.2d 29 (4th Dist. Ct. App. 1970).
From the foregoing it is concluded that Clarence L. Kimball is guilty of violation of Section 471.26(1)(d) and (e) F.S. as alleged and is not guilty of the practice of architecture in violation of Section 467.09. It is therefore,
RECOMMENDED that the registration of Clarence L. Kimball be suspended for a period of six (6) months.
DONE and ENTERED this 4th day of April, 1977, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Ford L. Thompson, Esquire
701 Lewis State Bank Building Tallahassee, Florida 32304
Selig I. Goldin, Esquire Post Office Box 1215 Gainesville, Florida
Steven Buckley, Esquire Post Office Box 2366
Ft. Myers, Florida 33901
Docket for Case No: 76-001792
Orders for Case No: 76-001792
| Issue Date |
Document |
Summary |
|
Jul. 18, 1978 |
Agency Final Order
|
|
|
Apr. 04, 1977 |
Recommended Order
|
Respondent signed and sealed plans without assuring they were adequate. They were not in his area of expertise. Recommend suspension.
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