vs. ) CASE NO. 86-2021
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson held a formal hearing in this case on October 9, 1986, in Ft. Lauderdale, Florida. The following appearances were entered:
FOR PETITIONER: Charles F. Tunnicliff, Esquire
Lisa M. Bassett, Esquire
3455 Northeast Twelfth Terrace Ft. Lauderdale, Florida 33334
By Administrative Complaint filed December 24, 1985, the Petitioner charged that Respondent, Joseph Potts, committed negligence and misconduct in the practice of engineering in violation of Section 471.033(1)(g), Florida Statutes, and signed or sealed drawings not prepared by him or under his responsible supervision, direction or control (plan stamping) in violation of Section 471.033(1)(j), Florida Statutes. By letter dated May 24, 1986, the Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing before a hearing officer appointed by the Division of Administrative Hearings. This cause came on for hearing on October 9, 1986. At the final hearing, Petitioner presented the testimony of five witnesses. In addition, Petitioner's Exhibits 1-11 were duly offered and admitted into evidence. The Respondent testified in his own behalf and called one additional witness. Respondent's Exhibits 1 and 2 were duly offered and admitted into evidence. The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact:
Respondent is, and has been at all times material hereto, a registered professional engineer in the State of Florida, having been issued License No. PE 0022656 by the State of Florida Board of Professional Engineers.
In late 1983, the Respondent designed and prepared plans for the alterations of a private residence in Ft. Lauderdale, Florida, owned by Heinz Welschoff (the Welschoff project). The alterations were to consist of converting a garage into a bedroom and bathroom.
In connection with the Welschoff project, two sets of professional drawings were submitted to the City of Ft. Lauderdale Building Department. In each set of drawings, the Respondent affixed his seal and signature to the electrical, mechanical and structural plans.
The first set of drawings submitted to the Ft. Lauderdale Building Department were dated January 1, 1984 and bore the seal and signature of the Respondent.
The structural information contained in the January 1, 1984 drawings was incomplete in that there was no depicted roof framing plan and the framing details included were inadequate to indicate what was required for sufficient design.
A revised set of plans for the Welschoff project was dated March 5, 1984 and bore the seal and signature of the Respondent.
The structural information contained in the revised set of plans for the Welschoff project was also inadequate for failure to depict a roof framing plan.
The revised Welschoff project plans failed to indicate how trusses were to be supported, which beams were necessary over the garage doors and glass sliding doors, lacked necessary construction detail, and were inadequate for permitting purposes.
In projects such as the Welschoff residence addition, it is the engineer's responsibility to design and specify the criteria for the roof system.
Both sets of the Welschoff project electrical plans contained several deficiencies and omissions. In the electrical plans: outlets were not identified with a circuit number; the panel board schedule was not scaled; electrical calculations were not in accordance with the National Electrical Code; the electrical riser did not show correct over-current devices for the feeders; and wire sizes for the different branch circuits were not specified (all in violation of the South Florida Building Code which incorporates the National Electrical Code).
The Respondent failed to utilize due care in preparing the Welschoff project's electrical plans and the drawings did not meet the standard of care used in the professional engineering industry in South Florida.
The Welschoff plans were reviewed by the City of Ft. Lauderdale Building Department and were rejected by the zoning, structural, electrical, project control and air conditioning examiners.
In early 1984, the Respondent prepared plans for the renovation and alteration of the Medallion Villas Retirement Home (Medallion Villas project).
In connection with the Medallion Villas project, the Respondent prepared a set of plans dated March 2, 1984, and revised October 16, 1984, which were submitted to the Ft. Lauderdale Building Department. In each set of plans the Respondent affixed his seal and signature to the electrical, mechanical and structural drawings.
The structural drawings for the Medallion Villas project plans were lacking in details and therefore confusing, failed to convey the intention of the designer, and contained all design aspects on one sheet.
The electrical plans for the Medallion Villas project contained numerous deficiencies and omissions. The electrical plans: failed to show outlets with appropriate circuit designations; failed to show a panel board schedule as to what the panel consists of; failed to indicate how either the air conditioning units or kitchen equipment were to be connected; failed to indicate branch circuit wire and conduit sizes to be used (a violation of National Electrical Code Requirements); and, the electrical riser diagram failed to show all of the connections and failed to show field wires.
The mechanical plans for the Medallion Villas project contained several deficiencies and omissions. The plans depict a gas-fired water heater without a flue (vent) in violation of the South Florida Building Code, Broward Edition (hereinafter SFBC); fail to depict how the wood trusses will be protected as the gas-fired water heater flue passes through them, in violation of the SFBC; depicts an air conditioning system which utilizes an air conditioning unit normally used in mobile homes without showing duct work or supply plenums which would be necessary to adapt the unit to building construction; and, fail to indicate design details for a source of 180 degrees F sanitizing water to be used for the kitchen dishwasher in the rinse cycle (required by Florida Health Code).
The Respondent had expected that the Medallion Villas project would not meet zoning requirements and would be rejected by the building department for that reason. The Respondent did not want to spend a lot of time and effort on electrical and mechanical details on the Medallion Villas project because he believed that the project would be rejected in any event. The Respondent did not make any notations on the plans indicating that they were for a limited purpose.
It is common practice and generally accepted in the professional engineering and construction industry that plans containing a professional engineer's seal and signature are considered complete and correct for all purposes. Particularly, in an application for a building permit, plans signed and sealed by a professional engineer are assumed to be ready for construction.
Consistent with industry-wide practice and expectations, the Ft. Lauderdale Building Department assumes that a set of professionally sealed plans received in connection with a building permit application are complete and ready for construction with possibly a need for minor corrections only.
When a building permit application is received by the City of Ft. Lauderdale Building Department, a review is completed by zoning, structural, electrical, project control and air conditioning examiners. Building permit applications and plans in connection therewith are never reviewed for a limited purpose and are expected to meet minimum building code requirements in all spheres of review. The SFBC is the applicable building code in the Ft. Lauderdale area.
The Respondent failed to utilize due care in preparing the Medallion Villas project's structural, mechanical and electrical plans and did not meet the standard of care used in the professional engineering industry in South Florida.
During early 1985, the Respondent was retained by Holland Builders, Inc. to design the interior of an aviation school to be located at Executive Airport in Ft. Lauderdale (the aviation school project).
The Respondent was hired to work out the interior details such as electrical, mechanical and air conditioning. The structure itself was to be prefabricated.
The Respondent affixed his seal and signature to a set of electrical, mechanical and structural plans for the aviation school dated February 18, 1985. The plans were submitted to the Ft. Lauderdale Building Department for permitting purposes.
The electrical plans for the aviation school project contained numerous errors, omissions and deficiencies. The aviation school electrical plans: failed to identify outlets with branch circuit numbers; reflected calculations which were not in accordance with the National Electrical Code; failed to indicate termination methods for aluminum conductors as regards active current; and, failed to specify branch circuit wire and conduit sizes to be used.
The mechanical plans for the aviation school project contained numerous omissions and deficiencies. The mechanical plans for the aviation school: failed to specify the material to be utilized in the flue for the hot water heater (required by SFBC); failed to depict specifications for a grease interceptor in the kitchen; and, failed to indicate a method of sanitizing cooking utensils in the kitchen (either a dishwasher or three compartment sink is required by the Florida Health Code).
The aviation school project's mechanical and electrical plans were actually drawn up by the contractors that constructed the prefabricated building. The plans drawn up by the contractors were later given to Respondent. The Respondent reviewed and approved the plans, placing his signature and seal on them.
The Respondent failed to utilize due care in the preparation and approval of the aviation school project's mechanical and electrical plans.
The aviation school project's mechanical and electrical plans did not meet the standard of care typically used in the professional engineering industry in South Florida.
The Respondent has a bachelor of science degree in civil engineering from Chicago Technical School College, Chicago, Illinois. The Respondent also attended Coyne Electrical School, a vocational school in Chicago, where he received training in electrical work and refrigeration.
The Respondent served 3 years in the Coast Guard as an Electronics Technician. The Respondent worked primarily with electronic equipment, but worked for a while with electrical systems on a small ship.
The Respondent has 28 years experience as an engineer. The Respondent was first employed with Superior Concrete Accessories in Chicago, Illinois for 8 years as a junior engineer. While there, the Respondent's duties included laying out bridge decks and forming concrete walls. The Respondent was next employed with Riverside Corporation in Pompano Beach, Florida for 9 years as engineer. While with Riverside, the Respondent worked on shoring for concrete work decks and the erection of derricks. Following that, the Respondent was employed with Concreform Company in Miami, Florida for 4 years as an engineer. The Respondent basically worked on shoring while with Concreform. The Respondent has been self-employed as an engineer in Fort Lauderdale for the past seven years.
The Respondent's most significant prior working experience has been in the areas of structural and civil engineering design.
The Respondent is not licensed in electrical nor mechanical engineering.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
The Petitioner, Department of Professional Regulation, is the state agency charged with the responsibility of regulating the practice of professional engineering. Chapter 471, Florida Statutes.
Counts I, II and III of the Administrative Complaint allege that the Respondent is guilty of negligence in the practice of engineering in regard to the Welschoff, Medallion Villas and aviation school projects, in violation of Section 471.033(1)(g), Florida Statutes. Rule 21H-19.01(3), F.A.C. provides in part that:
"the term negligence set forth in 471.033(1) (g), Florida Statutes, is herein defined as the failure by a professional engineer to utilize due care in performing in an engineering capacity or failure to have due regard for acceptable standards of engineering principles."
The Petitioner's expert witnesses, who I find credible and worthy of belief, characterized the drawings to which Respondent affixed his signature and professional seal as below the minimum standards of acceptability which is expected of a professional engineer in South Florida. The drawings contained numerous errors, omissions and examples of design ineffectiveness which were demonstrative of a failure to exercise due care in the preparation of
professional engineering plans. The Medallion Villas project plans were rejected entirely by the building department and the Welschoff residence and aviation school plans were accepted for permitting only after extensive revision. The Petitioner has established that the Respondent is guilty of negligence in the practice of contracting in regards to the Welschoff, Medallion Villas and aviation school plans as described in the Findings of Fact herein.
In Count IV of the Administrative Complaint the Respondent is charged with affixing his seal or name to plans, designs, drawings, or specifications which were not prepared by him or under his responsible supervision, direction, or control (plan-stamping) in violation of Section 471.033(1)(j), Florida Statutes. In particular, the Administrative Complaint alleges that the plans for the aviation school project were not drawn under Respondent's supervision or control. The evidence established that Respondent merely reviewed, signed and sealed the elevations, plumbing, air conditioning, and electrical design sheets for the aviation school. The designs depicted on those particular sheets were devised by independent contractors not working under the supervision, direction or control of the Respondent. The Respondent is guilty of "plan-stamping" in violation of Section 471.033(1)(j), Florida Statutes, as described in the findings of fact herein.
Count V of the Administrative Complaint alleges that Respondent is in violation of Section 475.025(3), Florida Statutes, in regard to the Welschoff, Medallion Villas and aviation school projects. That Section prohibits an engineer from affixing his seal or name to any plan or drawing which depicts work which he is not licensed to perform or which is beyond his profession or speciality therein. The Complaint charges that this alleged violation constitutes misconduct pursuant to Section 471.033(1)(g), Florida Statutes. Rule 22H-19.01(5), F.A.C., provides in part as follows:
(5) A professional engineer shall not commit misconduct in the practice of engineering. Misconduct in the practice of engineering as set forth in 471.033(1)(g), Florida Statutes, shall include, but not be limited to:
(d) Affixing a signature or seal to any engineering plan or document in a subject matter over which a professional engineer lacks competence because of inadequate training or experience;
(n) Violation of any law of the State of Florida directly regulating the practice of engineering.
The Respondent had limited military training as an electronics technician and formal education only in the area of civil engineering. The Respondent's most significant past work experience has been in the areas of civil and structural engineering. Respondent's license to practice engineering is in the discipline of civil engineering. As such, Respondent was not qualified by training, education, or experience to sign or seal plans depicting mechanical and electrical engineering design. The evidence established that the Respondent is guilty of a violation of Section 471.033(1)(g), Florida Statutes. Likewise, the evidence was sufficient to show that Respondent violated Section 471.025(3), Florida Statutes. Although there was evidence that the mechanical and electrical designs depicted in the drawings of the Welschoff, Medallion Villas and aviation school projects were not complicated and would not necessarily require the expertise of a licensed electrical or mechanical
engineer, the Respondent, a civil engineer, ran afoul of the requirements of Section 471.025(3), Florida Statutes, when he affixed his professional seal to them. The law requires, and the public has a right to expect, that a licensed professional engineer affix his signature and professional seal only to plans, designs or drawings concerning areas in which he has been specifically licensed to practice.
DONE and ORDERED this 10th day of December, 1986 in Tallahassee, Leon County, Florida.
W. MATTHEW STEVENSON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1986.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2021
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Adopted in Finding of Fact 1.
Covered in Procedural Background section.
Adopted in Findings of Fact 3 and 4.
Adopted in Finding of Fact 5.
Rejected as subordinate.
Adopted in Finding of Fact 7.
Adopted in Finding of Fact 8.
Rejected as subordinate.
Adopted in Finding of Fact 4.
Adopted in Finding of Fact 9.
Rejected as subordinate.
Adopted in substance in Findings of Fact 27 and 28.
Adopted in substance in Finding of Fact 11.
Adopted in substance in Finding of Fact 14.
Adopted in substance in Finding of Fact 15.
Adopted in substance in Finding of Fact 18.
Adopted in substance in Finding of Fact 25.
Rejected as subordinate.
Rejected as subordinate and unnecessary because beyond the allegations of the Administrative Complaint.
Adopted in substance in Finding of Fact 28.
Rejected as a recitation of testimony.
Rejected as a recitation of testimony.
Covered in Procedural Background section.
Rejected as subordinate and unnecessary.
Rejected as subordinate and unnecessary.
Rejected as a recitation of testimony.
Adopted in substance in Finding of Fact 15.
Adopted in Finding of Fact 17.
Adopted in Finding of Fact 17.
Adopted in substance in Finding of Fact 17.
Adopted in substance in Finding of Fact 17.
Rejected as a recitation of testimony.
Adopted in substance in Finding of Fact 18.
Rejected as a recitation of testimony.
Rejected as misleading and not supported by the evidence. Mr. Hufsdy testified that he was unsure whether the 6" duct in the kitchen diagram was suppose to connect to a duct or whether it was suppose to ventilate the range. Mr. Hufsdy testified that he was unable to determine the designers' intent for the 6" duct.
Adopted in substance in Finding of Fact 27.
Rejected as a recitation of testimony.
Rejected as a recitation of testimony.
Covered in Procedural Background section.
Adopted in Finding of Fact 10.
Adopted in Finding of Fact 10.
Adopted in substance in Finding of Fact 11.
Adopted in substance in Finding of Fact 16.
Adopted in substance in Finding of Fact 16.
Adopted in substance in Finding of Fact 22.
Adopted in substance in Finding of Fact 26.
Adopted in substance in Findings of Fact 26 and 29.
Rejected as misleading and a recitation of testimony. Garcia indicated that he was not certain whether parking lot lighting was within the scope of the Respondent's responsibility in connection with the project. Further, the Respondent admitted that he failed to provide parking lot lighting, but indicated that street lighting would be sufficient. Because the Respondent failed to indicate street lights on the aviation school plans and the Petitioner did not present independent evidence showing the degree of illumination of the existing street lights, the sufficiency of the lighting could not be determined.
Rejected as a recitation of testimony. (See note 48 above.)
Partially adopted in Finding of Fact 29. Matters not contained therein are rejected as a recitation of testimony.
Rejected as a misleading recitation of testimony.
Rejected as a recitation of testimony and beyond the allegations contained in the Administrative Complaint.
Rejected as subordinate and a recitation of testimony.
Adopted in substance in Finding of Fact 28.
Covered in Procedural Background section.
Adopted in Finding of Fact 12.
Adopted in substance in Finding of Fact 21.
Adopted in substance in Finding of Fact 3.
Adopted in Finding of Fact 21.
Adopted in substance in Finding of Fact 20.
Rejected as subordinate and a recitation of testimony.
Adopted in substance in Finding of Fact 18.
Adopted in Finding of Fact 31.
Adopted in Finding of Fact 33.
Adopted in substance in Finding of Fact 32.
Rejected as subordinate.
Adopted in substance in Finding of Fact 18.
Adopted in Finding of Fact 35.
Adopted in Finding of Fact 34.
Charles F. Tunnicliff, Esquire Lisa M. Bassett, Esquire
3455 Northeast Twelfth Terrace Ft. Lauderdale, Florida 33334
Wings S. Benton, Esquire General Counsel
Allen R. Smith, Jr.
