STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PROFESSIONAL ) ENGINEERS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4800

)

SAM G. GILLOTTI, )

)

Respondent. )

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PROFESSIONAL ) ENGINEERS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1213

)

CHARLES B. BLAND, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 9 and 10, 1990, a formal administrative hearing was held in this case in Bartow, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gregory A. Victor, Esquire William S. Berk, Esquire Jan L. Darlow, Esquire Adorno & Zeder, P. A.

2601 South Bayshore Drive, Suite 1600

Miami, Florida 33133

For Respondent Gillotti: Val L. Osinski, Esquire

Cumber Professional Center 9720 West Sample Road

Coral Springs, Florida 33065

For Respondent Bland: Stephen F. Baker, Esquire

565 Avenue K, S.E.

Winter Haven, Florida 33880

STATEMENT OF THE ISSUES

The issues in this case are whether the Board of Professional Engineers should discipline either Sam G. Gillotti on charges made against him in the Administrative Complaint filed in Case No. 86-4800 on or about September 26, 1986, or Charles B. Bland on charges made against him in the Administrative Complaint in Case No. 87-1213 on or about November 14, 1986, or both.

The Administrative Complaint against Gillotti in Case No. 86-4800 alleges essentially that he falsely certified both to Bland, as a part-owner, the owner representative, the engineer of record and the building contractor of record, and to the Imperial Polk County Building and Zoning Codes Department, that the structural members of an eleven-story project known as the Marlborough House, located in Winter Haven, Florida, was built according to approved plans and according to applicable building codes. The Administrative Complaint alleges that this constitutes violations of: (a) Section 471.033(1)(e), Florida Statutes, which prohibits the making or filing of a report which the licensee knows to be false; (b) Section 471.033(1)(g), Florida Statutes, which prohibits negligence or misconduct in the practice of engineering; (c) F.A.C. Rule 21H- 19.01(5)(b), which is alleged to prohibit being untruthful, deceptive, or misleading in any professional report whether or not under oath; and (d) F.A.C. Rule 21H-19.01(5)(m), which is alleged to prohibit knowingly failing to report a violation.

The Administrative Complaint against Bland in Case No. 87-1213 alleges in three counts that Bland: (Count I) was negligent in light of several specified deficiencies in the structural members of the Marlborough House, in violation of Section 471.033(1)(g) and (k), Florida Statutes, and F.A.C. Rule 21H-19.01(3); (Count II) falsely certified to the Imperial Polk County Building and Zoning Codes Department that the design of the Marlborough House was in accordance with applicable building codes (when combustible materials were designed to be used in the penthouse roof, in violation of the Southern Building Code), in violation of Section 471.033(1)(g), which prohibits fraud or deceit or misconduct in the practice of engineering, and F.A.C. Rule 21H-19.01(5)(b), which is alleged to define misconduct to include being untruthful in any professional report; and (Count III) signed and sealed electrical drawings for the Marlborough House when he was not competent through adequate training and experience to do so, in violation of Sections 471.033(1)(g) and (k), Florida Statutes, and F.A.C. Rule 21H-19.01(5)(d).

PRELIMINARY STATEMENT

Early during the pendency of these cases, they were consolidated for further proceedings and for final hearing. They were scheduled for final hearing and continued several times at the request of one or more of the parties. One continuance, granted to allow the parties to present a settlement stipulation to the Board of Professional Engineers, lasted approximately an entire year before jurisdiction was returned to the Division of Administrative Hearings for formal proceedings.

At the final hearing finally conducted on May 9 and 10, 1990, the Petitioner presented the testimony of nine witnesses, four by deposition, including several expert witnesses, and introduced in evidence some 28 exhibits. Both Gillotti and Bland testified, and Bland called one additional witness in his behalf. Gillotti also introduced two exhibits in his behalf.

At the conclusion of the hearing, the parties asked for and received 30 days from the filing of the transcript of the final hearing in which to file proposed recommended orders. The transcript was filed on June 1, 1990, but by unopposed motion the Petitioner requested, and was granted, an extension of time until July 20, 1990, for the filing of proposed recommended orders.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order Case Nos. 86

FINDINGS OF FACT

1. At all times relevant to the issues raised by the Administrative Complaint in Case No. 86-4800, Gillotti was licensed by the Department of Professional Regulation, Board of Professional Engineers, as a licensed professional engineer, having been issued license number PE 0012849. Indeed, Gillotti has been licensed to practice engineering in Florida for 23 years and, including practice in another state, has practiced engineering for 40 years. Besides this Administrative Complaint, Gillotti has never had a disciplinary proceedings brought against him as a licensed professional engineer.

   
   

2. Bland, too, is and at all times material to the issues raised in the Administrative Complaint in Case No. 87-1213 has been a licensed engineer in the State of Florida, having been issued license number PE 0019406. Bland is licensed as an engineer in other states--17 at the time of the final hearing, plus approximately another ten in years past. He has been practicing engineering since 1962. He has provided engineering services for the construction of approximately 200 high-rise masonry buildings, including three in progress at the time of the hearing. Like Gillotti, this is Bland's first disciplinary action during his career as an engineer.

   
   

3. Bland became involved in a project in Winter Haven, Florida, known as the Marlborough House in the late 1970s. Bland, doing business as Wellington Construction Corporation, was a part-owner of the project, and he also represented the joint venture that owned the property. The project was the development of an eleven-story condominium across the street from Cypress Gardens.

   
   

4. Bland also served as the engineer of record for the project. He created the structural design and did the structural drawings for the planned condominium building. The design called for the construction of reinforced masonry bearing walls. The design transferred weight from the eleven stories to the foundation through a combination of wall types. On the higher floors, where the loads would be least, cement block walls sufficed. As the weight accumulated and increased progressively towards the lower floors, the wall was designed to bear the increased weight with a margin of safety against structural damage or collapse. First, the cement blocks comprising the walls were designed to be filled with grout for increased strength. On lower levels, reinforcement bars (rebars) were required to be inserted in the cement blocks, along with the grout, for even more strength. Still lower in the building, reinforced cements block and steel tube columns were required in the spaces between the walls. Finally, at the lowest levels, the reinforced columns had to be poured concrete to withstand the heaviest loads.

   
   

5. The structural design called for special inspections to be made to assure that construction of the varied and relatively complex masonry bearing wall system would be according to plans.

6. Bland coordinated his structural design with the architectural drawings 1/ and had both approved by the Imperial Polk County Building and Zoning Codes Department.

   
   

7. It was decided that the Marlborough House would be inspected by affidavit, as permitted under the 1976 Standard Building Code, which Polk County had adopted. Under the affidavit system, the owner or designer of the building swears under oath that the building will be built according to approved plans and applicable local codes. Then, at the end of construction, before issuance of a certificate of occupancy, the owner or its designated representative must swear under oath that the building has been built according to approved plans and applicable local codes. However, the Imperial Polk County Building and Zoning Codes Department was unfamiliar with the affidavit system of inspection, never having used it before, and allowed letters to serve in place of a sworn affidavit.

   
   

8. At some point after approval of the plans for the Marlborough House, the structural plans were revised. The revised plans called for "poured-in- place" concrete flooring instead of the precast concrete floor system in the approved drawings. The revised drawings also called for a wood truss roof system for the penthouse roof. Otherwise, the structural drawings were essentially the same and also called for special inspections to be made to assure that construction of the varied and relatively complex masonry bearing wall system would be according to plans.

   
   

9. The wood truss roof system for the penthouse was discussed and coordinated with the architect on the project. It is not clear whether the other structural revisions were discussed and coordinated with the architect. It is clear, however, that the architectural drawings were not modified to coordinate with the changes in the structural drawings.

   
   

10. The the structural revisions were not formally approved by the Imperial Polk County Building and Zoning Codes Department. At least one change, allowing cantilevered balconies instead of corner column supports for the balconies, was approved as a field change.

    
    

11. At some point early in the construction of the Marlborough House, the major investor in Bland's joint venture, Des Peres Financial Corporation of Missouri, and Bland decided that, since Bland was both engineer of record and part-owner, as well as owner representative and building contractor of record on the project, it would be wise for an engineer other than Bland to inspect the project for progress for purposes of requisition draws. Bland and Neil Luton, owner of the Neil Luton Planning Group, which Bland had hired to coordinate the development and obtain the necessary government permitting, decided to hire Gillotti for this purpose.

    
    

12. Gillotti knew Bland slightly from a prior business relationship but that was the extent of Gillotti's knowledge of Bland. Gillotti had more of a working relationship with Luton, having being retained by him in connection with more than one development project in the past.

    
    

13. Gillotti was not hired to, and was not relied upon by Bland and Luton to, provide the special inspections of the construction of the masonry bearing wall system called for in the structural drawings.

14. In December, 1980, Bland gave the Imperial Polk County Building and Zoning Codes Department a letter representing that the Marlborough House would be built according to approved plans and applicable structural provisions of the local code. In another letter to the Imperial Polk County Building and Zoning Codes Department, Bland acknowledged that, although he had "associated" himself with another Florida licensed professional engineer, Gillotti, "concerning the progress inspections," he (Bland) had "ultimate responsibility concerning the structural aspects of the project."

    
    

15. Gillotti's first requisition inspection was during the construction of the fourth level of the Marlborough House. It was known to the Imperial Polk County Building and Zoning Codes Department that Gillotti was not present, or any way involved with the project, during the construction of the lower levels. Altogether, Gillotti made only three inspections during construction of the structural members of the Marlborough House, during construction of the fourth, eighth and penthouse levels.

    
    

16. Although Gillotti was inspecting for purposes of requisition, he noted his general observations, including in some cases deviations from what he understood to be the building plans (the revised, not the approved, plans), on a report of each of the inspections. He provided a copy of his inspection report both to Bland and to the Imperial Polk County Building and Zoning Codes Department.

    
    

17. Both Bland and the Polk County Building Inspection Department knew that Gillotti made only three inspections during construction of the structural members of the Marlborough House, during construction of the fourth, eighth and penthouse levels.

    
    

18. Neither Bland himself nor any other structural engineer was on the site doing the special inspections called for in the structural engineering plans during the construction of levels which Gillotti did not see being constructed. Neither Gillotti nor Bland, nor the two of them together, were on the site enough to properly conduct the special inspections required by the structural plans.

    
    

19. In June, 1981, the building was nearing completion, and Bland and Des Peres wanted the Imperial Polk County Building and Zoning Codes Department to issue a restricted temporary certificate of occupancy for the common areas so that the owners could begin selling condominium units in the project and obtain favorable financing terms for prospective buyers. For this purpose, Bland solicited and obtained from Gillotti a June 10, 1981, letter stating that the structural members of the Marlborough House were built according to the approved plans and local code. He did not qualify the letter either to note the limitations of his personal knowledge (and that he had to rely on Bland's representations to him as to most of the structure) or to again point out the deviatioins from the plans that he had noted in his inspection reports.

    
    

20. Bland knew that Gillotti's June 10, 1981, letter certifying the structural members of the building was not accurate and could not be relied on. He knew that Gillotti was not at the site enough to have certified the building in this manner. He should have known that neither Gillotti's inspections, his inspections, or the inspections of both men, were sufficient to comply with the special inspections requirements of the structural engineering plans. 2/ He also knew, or should have known, that he never gave Gillotti a copy of the approved plans, but only a copy of the revised plans, for Gillotti's use in inspecting the building.

21. Bland used Gillotti's June 10, 1981, letter to obtain from the Imperial Polk County Building and Zoning Codes Department a Temporary Certificate of Occupancy, issued on July 27, 1981, for the main lobby, the elevator and the elevator corridors, only, (and not the individual apartments) for floors 1-10 only.

    
    

22. To obtain a temporary certificate of occupancy for the rest of the building, on or about August 7, 1981, Bland gave the Imperial Polk County Building and Zoning Codes Department a letter certifying, among other things, that he had designed the Marlborough House in full conformance with the Standard Building Code, 1976 Edition, the National Fire Protection Code #3, and the National Electrical Code, 1975 Edition, with Polk County amendments, and that "[t]he building has now been constructed in full conformance with the above mentioned codes."

    
    

23. Knowing that Gillotti also had been at the site performing inspections, the Director of the Imperial Polk County Building and Zoning Codes Department asked for a letter from Gillotti, too, although Bland's certification letter was considered to be legally sufficient under the affidavit system of inspection. Neil Luton relayed the request to Gillotti.

    
    

24. On or about August 10, 1981, Gillotti sent the Imperial Polk County Building and Zoning Codes Department a letter certifying "that the structural members of the [Marlborough House] were built according to the approved plans, the Standard Bldg. Code 1976 Edition, and the local code." He qualified this certification only by writing: "Mr. Charles Bland made the Mechanical, Plumbing, & Electrical inspections for the above building."

    
    

25. On or about August 14, 1981, the Imperial Polk County Building and Zoning Codes Department issued a Temporary Certificate of Occupancy" for all of the Marlborough House except the penthouse level.

    
    

26. In fact, the Marlborough House was not built in accordance with either the approved plans or the applicable codes in that the wooden truss roof system for the penthouse level was not approved by the Imperial Polk County Building and Zoning Codes Department and violated provisions of the Southern Standard Building Code that prohibit the use of combustible materials in the penthouse roof system.

    
    

27. Other than the use of wooden trusses in the penthouse roof system, the evidence did not prove that the structure of the building failed meet the applicable codes except that the building was not constructed according to the approved plans in several respects:

    
    

    1. Reinforced concrete columns called for on the drawings had not, in all cases, been provided, e.g., in the second level, west unit, in the wall between the bathrooms. Instead, reinforced concrete block columns, which are not as strong, were substituted.

       
       

    2. Steel tube columns specified at the exterior corners of bedrooms were not provided, e.g., at the tenth level, east unit, exterior corner, approximately 30 feet south of the north wall.

       
       

    3. Spandrel beams specified at balconies, beams to be placed at the exterior edge of the balcony slabs, were not provided.

    4. Uncontrolled cutouts for ducts and electrical conduits were made in bearing walls. In one case, a wall was designed to be nine feet wide and had four feet missing due to uncontrolled cutouts.

       
       

    5. Some of the concrete blocks making up bearing walls were poorly aligned vertically. Misaligned blocks are hard to fill with grout, as the plans require in some places. In addition, vertically misaligned block introduces eccentric forces at the mortar joint between blocks, instead of transferring the load directly vertically through the block to the foundation in accordance with the structural design.

       
       

    6. In addition, some wall sections were misaligned so that one level's wall was not positioned directly above the wall section of the level below it. In one case, the displacement was greater than the width of the wall. As a result, lateral forces were introduced to the floor slab between the two wall sections, contrary to the structural design for the building.

    
    

    (f) Cement block cells that were designed to receive grout did not in some instances.

    
    

28. In addition, the electrical engineering plans contained numerous deviations from the standards of the electrical engineering industry, as well as the National Electrical Code:

    
    

    Drawing E-1.--

    
    

    1. There were no wire sizes shown for the various apartments for the branch circuits, contrary to the standards of the electrical engineering industry.

       
       

    2. There were no circuit numbers shown for the various apartment devices, another deviation from the standards of the industry.

       
       

    3. The outlet spacings in the apartment rooms and kitchens are not in accordance with the National Electrical Code (NEC), s. 210-25(b).

       
       

    4. There are no telephone or television outlets indicated on the plans, contrary to industry standards.

       
       

    5. There is no air conditioning disconnect switch indicated, as required by NEC s. 430 to allow for safe servicing of the unit.

       
       

    6. There was no life safety system audio device shown in the common corridors or stairs as required by the National Fire Protection Association (NFPA) s. 101.

       
       

    7. The apartment panelboards A and B do not show a branch circuit for the water heater, which is provided in the plumbing drawings.

       
       

       Drawing E-2.--

       
       

    8. Drawing E-2 has the same deviations noted in (a) through (f) for Drawing E-1.

       
       

    9. The connection shown for the fire pump required by the NFPA in all buildings did not meet the requirements of the NEC.

    10. No short circuit rating for any of the electrical over-current devices, panelboard bussing, etc., are shown, contrary to the requirements of NEC s. 110-9.

        
        

        Drawing E-3.--

        
        

    11. The telephone system conduit sizes shown appear inadequate to handle risers of 20 outlets. The ratio of 20 outlets to one riser also appears excessive. The normal ratio is six apartments per riser.

        
        

    12. The plans do not indicate the size of the elevator disconnect switch as required by NEC s. 430.

        
        

        Drawings E-1A, E-2A and E-3A.--

        
        

    13. Drawing E-1A, E-2A and E-3A have the same deviations noted in (a) through (c), (e) and (f) for Drawing E-1.

        Drawing E-4.

        
        

    14. Drawing E-4 has the same deviations noted in (i) and (j) for Drawing

        E-2.

        
        

    15. In addition, the electrical riser does not show all feeder sizes or

        equipment sizes, a requirement of the NEC. Drawing E-4A.

        
        

    16. Some fire alarm schematics were shown but they were incomprehensible. This fails to meet the requirements of the NFPA s. 101, which requires the schematic to show the components of the system and how it is going to perform.

    
    

29. Bland has had a great deal of experience in the design and construction of multistory buildings such as the Marlborough House, and has sealed the electrical engineering plans on many of those projects. The evidence did not prove that his experience and training was not adequate to enable him to do the electrical drawings for the Marlborough House. However, the extensive deviations between Bland's electrical plans and the various code requirements do prove that Bland was either incompetent or grossly negligent in drawing the electrical plans for the Marlborough House.

    
    

    CONCLUSIONS OF LAW

    
    

30. The administrative complaints in these cases allege misconduct occurring in 1981 but apparently charge violations of Section 471.033(e), (g) and (k), Florida Statutes (1985), the codification of the statutes in effect at the time of the filing of the administrative complaints, which authorizes the Board of Professional Engineers to discipline a licensee for:

    
    

    (e) Making or filing a report or record which a licensee knows to be false, willfully failing to file a report or record required by state or federal law, willfully impeding or obstructing

    such filing, or inducing another person to impede or obstruct such filing. Such reports or records shall include only those which are signed in the capacity of the licensed engineer;

    * * *

    (g) Fraud or deceit, negligence, incompetence, or misconduct, in the practice of engineering;

    * * *

    (k) Violation a rule of the board or department or any order of the board or department previously entered in a disciplinary hearing.

    
    

31. Florida law does not permit an agency to charge a licensee with violations under a statute not enacted at the time of the alleged conduct. See Middlebrooks v. Dept. of State, 15 F.L.W. D1564 (Fla. 1st DCA 1990); Lewis v. Criminal Justice Standards and Training Comm'n, 462 So. 2d 528 (Fla. 1st DCA 1985); Dept. of Transp. v. James, 403 So. 2d 1066 (Fla. 4th DCA 1981); Nechtman

    v. Saker, 271 So. 2d 26 (Fla. 3d DCA 1972). But an agency can bring disciplinary proceedings under a statute enacted after the alleged conduct took place if the statute is a substantial restatement of preexisting grounds for discipline. Drury v. Harding, 461 So. 2d 104, 108 (Fla. 1984); Solloway v. Dept. of Prof. Reg., 421 So. 2d 573 (Fla. DCA 1982), rev. den., 430 So. 2d 452 (Fla. 1983).

    
    

32. Section 471.033(1)(e) and (g), Florida Statutes (1985), is a verbatim restatement of Section 471.033(1)(e) and (g), Florida Statutes (1981). Subparagraph (k) of Section 471.033(1), Florida Statutes (1985), did not exist in the codification. But Section 471.033(2), Florida Statutes (1981), provided: "The board shall specify, by rule, what acts or omissions constitute a violation of subsection (1)." To the extent of its reference to Board rules, Section 471.033(1)(k), Florida Statutes (1985), is a substantial restatement of Section 471.033(2), Florida Statutes (1981).

    
    

33. The Administrative Complaint against Gillotti charges violations of

    F.A.C. Rule 21H-19.01(5)(b) and (m). The Administrative Complaint against Bland charges violations of Rule 21H-19.01(3) and (5)(b) and (d). But the Petitioner did not present any evidence on the rules that were in effect in 1981, when the alleged misconduct was to have taken place. 3/

    
    

34. The evidence was clear that Gillotti violated Section 471.033(1)(e) and (g), Florida Statutes (1985), when he certified by letter on June 10, 1981, that the structural members of the Marlborough House were built according to the approved plans and local code and again on August 10, 1981, "that the structural members of the [Marlborough House] were built according to the approved plans, the Standard Bldg. Code 1976 Edition, and the local code." Gillotti should have worded his certification letter more carefully so as to remind at least the Imperial Polk County Building and Zoning Codes Department that he was relying on Bland's certification, instead of implying that he, not Bland, was the structural inspector, and to point out the deviations from the plans that he had observed. His failure to do so was negligent. However, both Bland and the Imperial Polk County Building and Zoning Codes Department knew that Gillotti could not possibly certify the entire building from his personal knowledge. And Gillotti's reports, copies of which were provided to both Bland and the Imperial Polk County Building and Zoning Codes Department, made note of the deviations Gillotti had observed. Neither Bland nor the Imperial Polk County Building and Zoning Codes Department was misled by the certification or relied on it as a certification of the entire building from Gillotti's personal knowledge.

    
    

35. The evidence was clear that Bland was guilty of negligence, as alleged in Count I and Count II of the Administrative Complaint against him, in violation of Section 471.033(1)(g), Florida Statutes (1981), when he certified by letter on August 7, 1981, that he had designed the Marlborough House in full

    conformance with the Standard Building Code, 1976 Edition, the National Fire Protection Code #3, and the National Electrical Code, 1975 Edition, with Polk County amendments, and that "[t]he building has now been constructed in full conformance with the above mentioned codes."

    
    

36. Bland also violated Section 471.033(1)(g), Florida Statutes (1981), as alleged in Count III of the Administrative Complaint against him, by his incompetent electrical engineering work on the Marlborough House.

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: (1) finding Sam G. Gillotti guilty of violating Section 471.033(1)(e), Florida Statutes (1981), under the Administrative Complaint in Case No. 86-4800, fining him $1,000 and placing him on probation for six months; and (2) finding Charles

B. Bland guilty of violating Section 471.033(1)(e) under Count I and II, and Section 471.033(g), Florida Statutes (1981), under Count III, of the Administrative Complaint in Case No. 87-1213, fining him $3,000 and suspending his license for one year, followed by one year of probation.

RECOMMENDED this 22nd day of August, 1990, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1990.

ENDNOTES

1/ There was one place where the structural engineerings drawings and the architectural drawings conflicted. The structural design had a load bearing wall in the middle of what was a kitchen in the architect's drawing. But there was no competent evidence that this single error would warrant discipline against Bland, as the engineer of record. There also was no evidence suggesting that this error went uncorrected.

2/ Bland professed at the hearing to have no knowledge of the special inspection requirement, implying that he overlooked that part of the plans he drew.

3/ Current F.A.C Rule 21H-19.001(6) provides in pertinent part:

"(b) being untruthful, deceptive, or misleading in any professional report, statement, or testimony whether or not under oath or omitting relevant and pertinent information from such report, statement or testimony when the result of such omission would or reasonably could lead to a fallacious conclusion on the part of the client, employer or the general public;

1. performing an engineering assignment when not qualified by training or experience in the field or discipline of professional engineering involved;

2. 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;

* * *

(m) if a professional engineer has knowledge or reason to believe that any person or firm is guilty of violating any of the provisions of Chapter 471, Florida Statutes, or any of these rules of professional conduct, failure to immediately present this information to the Department Professional Regulations

. . .."

Assuming that these rules were in effect in 1981, subparagraph (b) substantially restates Section 471.033(1)(e), and subparagraph (d) is not much different than negligence or incompetence under Section 471.033(1)(g).

Current F.A.C. Rule 21H-19.001(6)(m) is not covered in Section 471.033(1)(e) or (g). In addition, the Administrative Complaint against Gillotti did not put Gillotti on notice that he was being charged with this alleged misconduct, and Gillotti cannot be found guilty of, and be disciplined for, this alleged violation.Current F.A.C. Rule 21H-19.001(3) is not applicable to this case.

Current F.A.C. Rule 21H-19.001(4) simply prohibits negligence, as does Section 471.033(1)(g), and defines "negligence" 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." It also states: "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."

APPENDIX TO RECOMMENDED ORDER CASE NOS. 86

To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

A.1.-8. Accepted and incorporated to the extent not subordinate or unnecessary. A.9.-10. Accepted and incorporated to the extent not subordinate or unnecessary.

A.11.-12. Cumulative.

A.13. Rejected as irrelevant. The Administrative Complaint does not charge Gillotti with failing to report a forgery.

B.1.-5. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Where relevant, accepted but subordinate to facts found.

2. Accepted but subordinate to facts found.

3. Accepted and incorporated to the extent not subordinate or unnecessary (as, e.g., in f.(ii)).

B.9.-10. Accepted and incorporated to the extent not subordinate or unnecessary.

B.11. Last two sentences, subordinate to facts found. The rest is accepted and incorporated.

B.12.-13. Accepted and incorporated.

1. Accepted, but not probative of relevant facts and unnecessary.

2. Accepted but subordinate to facts found.

Gillotti's Proposed Findings of Fact.

(As Gillotti's proposed findings of fact are not numbered, they have been assigned consecutive numbers 1 through 17 for each paragraph, starting with the third paragraph on page 2 through the third complete paragraph on page 6 of the Proposed Findings of Fact, Conclusions at [sic] Law and Proposed Recommended Order of Respondent, Sam G. Gillotti. The rest seems to be argument and conclusions of law.)

1.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13.-16. Accepted but irrelevant to the charges in the Administrative Complaint against Gillotti.

17. Accepted and incorporated to the extent not subordinate or unnecessary.

Bland's Proposed Findings of Fact. 1.-4. Accepted and incorporated.

1. First sentence, accepted and incorporated. To the extent that it implies that Gillotti was the inspecting structural engineer on the job or special inspector required in the design drawings, the second sentence is rejected as contrary to facts found. That was Bland's responsibility. Gillotti was inspector only for requisition purposes.

2. Subordinate and unnecessary.

7.A.-C. The evidence did not prove that these deviations from the approved plans were below code minimums for weight bearing capability. But neither did Bland prove that they were "acceptable," or "satisfactory," or "reasonable" substitutions.

7.D. Rejected as contrary to facts found. As found, the uncontrolled cut-outs did "impair" the structure of the building, but the extent of the "impairment" was not quantified or related to code minimums for weight bearing capability.

1. Rejected as contrary to facts found. As with the uncontrolled cutouts, the vertical misalignment did "impair" the structure of the building, but the extent of the "impairment" was not quantified or related to code minimums for weight bearing capability.

2. Rejected as contrary to facts found. As with the uncontrolled cutouts vertical misalignments, the unfilled cells did "impair" the structure of the building, but the extent of the "impairment" was not quantified, either by persuasive proof of the number of cells not filled with grout or by the affect on the structure, and was not related to code minimums for weight bearing capability.

1. Subordinate and unnecessary.

2. As written, it is unclear what fact is being proposed. To the extent that this proposal is a concession that the certification was false in this regard, as the next proposal suggests, accepted and incorporated.

3. First sentence, rejected as contrary to the evidence. (There was evidence of an intentional false statement.) Second sentence, accepted but unnecessary.

4. Rejected as subordinate to facts contrary to those found.

5. Rejected as contrary to facts found.

6. Argument or subordinate, and unnecessary.

7. Accepted but unnecessary.

8. Accepted and incorporated to the extent not subordinate or unnecessary.

9. Rejected as contrary to the evidence. The evidence of the deficiencies in the electrical plans is evidence of lack of education and training. Otherwise, accepted but unnecessary.

10. Accepted but irrelevant and unnecessary. The evidence focused on, and limited itself to, the electrical plans themselves, and did not extend to the actual construction.

COPIES FURNISHED:

Gregory A. Victor, Esquire William S. Berk, Esquire Jan L. Darlow, Esquire Adorno & Zeder, P. A.

2601 South Bayshore Drive, Suite 1600

Miami, Florida 33133

Val L. Osinski, Esquire 3000 North University Drive Belle Terre West, Suite A

Coral Springs, Florida 33065

Stephen F. Baker, Esquire

565 Avenue K, S.E.

Winter Haven, Florida 33880

Rex Smith Executive Director

Board of Professional Engineers Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 86-004800

Orders for Case No: 86-004800