STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-0034

)

PAUL A. POLIQUIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 19, 1987 in Miami, Florida. The parties waived the time requirement that a Recommended Order be entered within 30 days following the close of the hearing and the parties were allowed an opportunity to submit post- hearing memoranda supportive of their respective positions. The parties' memoranda was considered by me in preparation of this Recommended Order.

Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix to the Recommended Order herein.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Paul A. Poliquin, pro se

324 West Rivo Alto Drive Miami, Florida 33139

ISSUE PRESENTED

The issue presented for decision herein is whether or not Respondent is guilty of misconduct, as is more Particularly alleged in an Administrative Complaint dated November 26, 1986, and which is more particularly set forth hereinafter in detail, and if so, what penalty should be imposed.

INTRODUCTION AND BACKGROUND

By its Administrative Complaint dated November 26, 1986, Petitioner, Department of Professional Regulation, alleged that Respondent, Paul A. Poliquin, had committed one count of negligence and one count of misconduct in the practice of engineering in violation of Section 471.033(1)(g), Florida Statutes, and one count of failure to date plans, in violation of Section

475.025(1), Florida Statutes. The complaint alleged that Respondent affixed his seal or name to plans submitted to the Dade County Building Department, which plans were inadequate for permitting purposes in that they were materially and technically deficient and did not comply with applicable building code standards. It is further alleged that the plans were not dated when submitted. Finally, it is alleged that Respondent's plans were resubmitted without modification and were again rejected for material and technical deficiencies, failed to comply with applicable building codes and were again not dated.

Respondent disputed the allegations set forth in the Administrative Complaint and requested a formal hearing.

FINDINGS OF FACT

1. At times material hereto, Respondent was licensed as a professional engineer, having been issued License No. PE0014862.

   
   

2. Philip Clark contracted with Gilbert Simm, the owner of Quality Foods, Inc., to prepare architectural plans depicting the interior finishing of the food processing area to be contained in an existing warehouse owned by Simm. Pursuant to his contract with Simm, Clark hired Respondent to prepare the mechanical-design portion of the plans.

   
   

3. Respondent prepared said mechanical-design plans consisting of sheet M-

   1 and affixed his seal and name thereto.

   
   

4. Bernard Amangual, general contractor, applied for a building permit to commence construction of the food processing area based on the plans submitted by Respondent. (Petitioner's Exhibits 1 and 3)

   
   

5. The building permit was rejected by the Metropolitan Dade Building Department on January 27, 1986. John Ariton, mechanical plans examiner for Dade County, prepared a mechanical processing comment sheet after reviewing Respondent's drawings which reflected several mechanical-design elements depicted by Respondent which failed to comply with the South Florida Building Code. Ariton further completed a design criteria sheet upon review of Respondent's plans. (Petitioner's Exhibits 4 and 5)

   
   

6. Dade County enforces the South Florida Building Code, which has adopted the requirements and standards of the National Fire Protection Association (NFPA).

   
   

7. Petitioner retained the services of Berton Hufsey, received as an expert herein in the field of mechanical engineering, to examine Respondent's plans prior to the hearing and to file a report which was done contemporaneous with said examination outlining noted deficiencies in Respondent's design, several of which were checked on the Building Department's mechanical processing comment sheet. Among denoted deficiencies, Respondent's plans failed to provide for sufficient exhaust air for the hood as the capacity of the exhaust air shown on the mechanical plans was 7200 cfm and the Code requirement is 7500 cfm. Respondent failed to recite the dimensions of the cooking equipment under the hood on the mechanical drawing. Respondent only provided for one exhaust tap in the 15 foot hood design in violation of the South Florida Building Code, which required that there be one tap for every eight (8) feet. Respondent failed to note in his plans the description or indication of the wall adjacent to the hood, or of the roof above the hood, to indicate it was either of combustible material or whether or not the 18-inch required clearance had been satisfied.

   Respondent failed to provide any reference to the size of sheet metal ductwork that goes from the hood to the exhaust fan, which is in violation of the South Florida Building Code.

   
   

8. When the plans were submitted by Respondent and were presented to the Building Department, there were no energy calculations made.

   
   

9. The automatic extinguisher system shown on the mechanical plans as submitted by Respondent did not provide for an automatic means to ensure the shutdown of fuel or power upon system activation.

   
   

10. The gas riser did not indicate an automatic shut-off valve to stop the flow of gas in the event of fire as is required by the South Florida Building Code.

    
    

11. An engineer who affixes his seal and name to plans thereby indicates that the plans are complete and ready for submission.

    
    

12. An engineer is required to date all plans bearing his seal and signature.

    
    

13. Respondent acknowledges that he provided the wrong hood size in the mechanical drawings. He also acknowledged that the fire extinguisher system usually provides for a shut-off valve in the mechanical drawings, which was not provided. Aside therefrom, Respondent considered the other deficiencies noted above were merely technical deficiencies which he should have been afforded an opportunity to complete. In this regard, Respondent contends that the engineer, Philip Clark, did not give him the details to make the necessary energy calculations or details about various equipment items, and therefore, it was impossible for him to make the necessary calculations and provide the required details.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.

    
    

15. The authority of the Petitioner is derived from Chapter 471, Florida Statutes.

    
    

16. Respondent, a licensed professional engineer, is subject to the disciplinary guides of Chapter 471, Florida Statutes.

    
    

17. Subsection 471.033(1)(g), Florida Statutes, authorizes the Petitioner to take disciplinary action for any licensee too engages in conduct amounting to fraud, deceit, negligence, incompetence or misconduct in the practice of engineering. Additionally, Subsection 471.025(1), provides that all plans, specifications, plates or reports prepared or issued by (an engineer) and being filed for public record shall be signed by the registrant, dated and stamped with said seal.

    
    

18. Respondent's failure to affix his seal, name and date the above- referenced plans amounts to conduct within the purview of Subsection 471.025(1), Florida Statutes. Competent and substantial evidence was offered herein to establish that the Respondent submitted mechanical plans which contained

    numerous design deficiencies and fell below the minimum acceptable standards for engineers, which conduct falls within the purview of Subsection 471.033(1)(g), Florida Statutes.

    
    

19. Competent and substantial evidence was offered herein to establish that Respondent prepared and submitted plans for the subject project in a negligent manner within the purview of Subsection 471.033(1)(g), Florida Statutes.

    
    

20. Respondent's failure to date sheet M-1 of the subject plans amounts to conduct within the purview of Subsection 471.025(1), Florida Statutes, and Rule 21H-19.01(5)(n), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

1. Respondent pay an administrative fine of $1,000.

   
   

2. Respondent's license be placed on probation for a period of six (6) months, during which time Respondent will be required to complete a study guide in a course in professionalism and ethics as required by Petitioner.

RECOMMENDED this 1st day of July, 1987, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0034

Respondent's memoranda is in the form of a summary of the testimony which was considered by me in preparation of the Recommended Order. However, the following responses are provided to the summation given by Respondent.

Item 3 Rejected as irrelevant to a determination of the issues posed.

Items 4 and 5: Rejected based on other credible evidence indicating that the drawing does not contain the requisite sign, seal and date as is required by statute and rules and that there were numerous deficiencies as referred to by expert witness Berton Hufsey.

Rulings on Petitioner's proposed findings of fact: FOF 23 Rejected as argument or a conclusion.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. Paul A. Poliquin

324 West Rivo Alto Drive Miami, Florida 33139

Honorable Van B. Poole Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Allen R. Smith, Jr.

Executive Director

Board of Professional Engineers

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-000034

Orders for Case No: 87-000034