STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

PROFESSIONAL ENGINEERS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5149

)

CHARLES A. WUNDER, Sr., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on May 16 through 18 and September 10 through 14, 1990, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Wings S. Benton, Esquire

Post Office Box 5676 Tallahassee, Florida 32314-5676

For Respondent: Diane E. McGill, Esquire

Turk & Shipp

4223 Del Prado Boulevard Cape Coral, Florida 33904

STATEMENT OF THE ISSUES

Whether the Respondent's license as a professional engineer should be suspended, revoked or otherwise disciplined based upon the allegations set forth in the Third Amended Administrative Complaint.

PRELIMINARY STATEMENT

On January 9, 1990, a finding of probable cause was made by the Probable Cause Panel of the Board of Professional Engineers upon the Third Amended Administrative Complaint filed against the Respondent, Charles A. Wunder, Sr. (Wunder), by the Department of Professional Regulation (the Department). As the case was already pending in the Division of Administrative Hearings due to Respondent Wunder's earlier request for a formal hearing, it was necessary to seek leave to amend in the administrative forum. Leave to amend was granted February 22, 1990, and the Third Amended Administrative Complaint was filed March 5, 1990. The gravamen of the charges is that Respondent Wunder was negligent in the performance of his duties as a professional engineer on two projects within the City of Cape Coral in Lee County, Florida. These projects

are referred to throughout these proceedings as "Plaza 1300" and "Schooner Cove".

Prior to the commencement of the hearing scheduled for May 16, 1990, one of the Respondent's expert witnesses was hospitalized, and one of his fact witnesses could not be located. Based upon the representation that the expert and the fact witness were not needed in the portion of the proceedings about the project known as Schooner Cove, the final hearing went forward on this portion of the case. The hearing on the project known as Plaza 1300 was rescheduled for September 1990.

During the hearing on Schooner Cove, the Department presented six witnesses and nineteen exhibits. Petitioner's Exhibits numbered 1 through 8 and 10 through 19 were received into evidence. The Respondent testified in his own behalf and offered the testimony of four witnesses. Sixteen exhibits were marked and submitted. Respondent's exhibits numbered 2 through 12, and 15 were admitted into evidence, some for a limited purpose. Hearing Officer Exhibit No.1 was received into evidence and later remarked as Respondent's Exhibit No.1.

In September 1990, during the Department's presentation involving Plaza 1300, twelve witnesses were called in its case-in-chief and the deposition testimony of the Respondent was offered and accepted into evidence. James O. Power, P.E. was recalled during Petitioner's case rebuttal and one additional witness testified during the rebuttal phase of the proceeding. Petitioner's exhibits lettered A through PP were admitted into evidence, some for a limited purpose. The Respondent testified in his own behalf and presented five witnesses. Respondent's exhibits lettered AA through RR were received into evidence. Leave was granted to Respondent to file some of these exhibits post hearing. The additional attachments to Respondent's exhibit BB were the only documents filed post hearing which were rejected by the Hearing Officer for the reasons stated in the written order dated October 18, 1990. The additional excerpts from the Standard Building Code filed by Petitioner on November 30, 1990, are the last entries of exhibits in this case. These excerpts are considered to be a composite exhibit which has been marked Petitioner's Exhibit RR. All other exhibits were described and given identification letters prior to the close of the evidentiary portion of these proceedings.

At the close of the final hearing, the parties waived the requirement for proposed recommended orders to be filed within ten days after the filing of the transcript, and they further waived the requirement that the Recommended Order issue within thirty days of the transcript filing. The transcript was filed with the Division of Administrative Hearings on October 10, 1990, and proposed recommended orders were received by December 5, 1990. Rulings on the proposed findings submitted by the parties are in the Appendix of the Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the practice of professional engineering in Florida.

2. During the applicable time period set forth in the Third Amended Administrative Complaint, Respondent, Charles A. Wunder, Sr., was licensed as a professional engineer in Florida. He holds license number PE0016670, which has been in effect continuously since 1971. Respondent Wunder's last known address on file with the Board of Professional Engineers is 12620 Eagle Road, Cape Coral, Florida 33909.

   
   

   Plaza 1300

   
   

3. In 1981, the Respondent was commissioned by Messrs. Mike Zak and John Zipkovich to prepare plans for the construction of a commercial building to be developed in Cape Coral, Florida, known as Plaza 1300. At the time the commission took place, the owner-developers represented to Respondent that the construction company with whom he was involved would build the project, and he would supervise construction as a professional engineer. Based upon this representation, the Respondent designed and prepared plans in a way that was less time consuming than the creation of a plan to be used without his continuous supervision and direct involvement in construction. Instead of placing all of the specifications on the drawings, the Respondent chose to incorporate many of the details in the plan through the use of separate specification booklets which would be used by the fabricators and the Respondent during construction. The Respondent judged that this was a reasonable approach to the project design based upon the information he was given by the owner- developers during the design phase.

   
   

4. The original plans for the building were completed in January of 1982. Four copies of the drawings, as completed by the Respondent for this project, were sealed with Respondent Wunder's professional seal as an engineer and were given to his clients during that same month and year. These drawings were specific enough to allow Messrs. Zak and Zipkovich to decide whether this was the building they wanted built at the project site. The Respondent did not give the owners the technical specifications that had been placed in the separate booklets because this aspect of the design was beyond what they were seeking to review at the time the project design was presented to them.

   
   

5. After the Respondent discussed with the owner-developers what it would cost to build the project, they decided to find another builder who would construct the project for less money. The owner-developers used the sealed drawings when they went looking for a cheaper builder. They did not advise the Respondent of their decision not to retain the construction firm with whom he was affiliated, and they did not reveal they were going to use the drawings for the purpose of retaining a contractor.

   
   

6. The owners gave the drawings to David J. Hayes, the general contractor and qualifier for Coral Bay Construction, Inc. This construction company was hired by the owners to build Plaza 1300 pursuant to the sealed drawings created by Respondent Wunder.

   
   

7. Once the Respondent was advised that his construction company would not build the building, there must have been some discussions and agreements made with the owner-developers as to how Respondent Wunder would remain on the project for engineering purposes. It is obvious from the evidence adduced at hearing that the Respondent remained actively involved in the project in a number of ways after he completed his design and sealed the drawings.

   
   

8. The Respondent's role and involvement in this project is confusing to others who are attempting to delineate what the Respondent's responsibilities

   were at different stages of the project's development. Sometimes the Respondent performed engineering functions for the owner-developers such as the approval of shop drawings. At other times, he assisted the contractor in working out code disputes with various city agencies and defended or revised his design. The Respondent also completed the structural inspection for the city on this building, and made any necessary design changes the city deemed were necessary to allow the issuance of a certificate of occupancy. By some means, all of the parties managed to delineate responsibilities throughout the project without any conflicts as to who was ultimately responsible for what in any given stage of development. The Respondent was only called upon when he was needed, and he assisted any of the parties when he was asked to do so.

   
   

9. The signed and sealed drawings received by the contractor were submitted by him to the building department as the complete set of plans and specifications. Building department personnel relied on the drawings as the complete building plans. However, other city personnel who had questions concerning the specifications contacted the designer, Respondent Wunder. Any questions were resolved to the satisfaction of the city personnel prior to permit approval. For example, when the Fire Marshall had questions concerning whether construction would comply with the Standard Fire Prevention Code, National Fire Codes (NFPA) and the Life Safety Code 101, he discussed the matter with the Respondent. The Fire Marshall was given the Respondent's specification booklet that contained more information on the building materials than what was contained on the plans. Based upon the review of these specifications in addition to the drawings, the project was approved for permit by the Fire Marshall as long as the special conditions listed by him on a separate sheet were met. A permit was issued to construct the building according to the drawings and the additional specifications reviewed by city personnel on May 5, 1982.

   
   

10. The contractor was never advised during his ongoing interactions with Respondent Wunder, the owner-developers or city personnel that separate sets of specifications existed which were part of the designer's plans for the project. The contractor relied on the construction drawings, the Respondent's approval of shop drawings prepared by manufacturer's before the structural items were fabricated for placement in the building, the outcome of his own discussions with city personnel about the application and interpretation of various codes as well as Respondent's discussions, and Respondent's structural inspections of the project. Based upon the knowledge and materials obtained by this contractor throughout the project, he was able to construct the building and obtain a certificate of occupancy for the owner-developers.

    
    

11. The separate sets of specifications were not provided by the Respondent or the city through its records at hearing because these items were lost, destroyed or stolen from the city and the Respondent years prior to the filing of the charges by the Department. The deficiency in the records was not the fault of the city or the Respondent.

    
    

12. Wherever deficiencies alleged by the Department as to design could be resolved in separate specifications, it has been determined that the Respondent did in fact supply this information in additional specification booklets as part of the plan for Plaza 1300.

    
    

13. On Sheet S1 of the signed and sealed drawings, the Footing Schedule fails to call for anchor bolts at the base of steel columns in Footings (1,2,4) CB and 7 B-C. Ordinarily, this omission is contrary to the exercise of due care and fails to exhibit due regard for the principles of professional engineering

    because anchor bolts are required for the columns to function. It is careless to assume a contractor will use the right number and size anchor bolts. In this case, however, the Respondent created a separate specification, approved the shop drawings before the columns and the anchor bolts were delivered for use by the contractor, and inspected the installation of these materials. Any omission of the anchor bolts from the Footing Schedule in the drawings was resolved well before installation of the columns.

    
    

14. The Footing Schedule on Sheet S1 calls for dowels at 10 feet on centers in footings supporting masonry walls, but this is inconsistent with the dowel requirements indicated on Sheet S2. This sheet shows the dowels are placed at varying spaces, e.g., some are spaced 46 feet apart, some are 6 feet, 8 feet, 10 feet and 40 feet on centers.

    
    

15. Drawings should be consistent as to the information they convey to the contractor. This error could not have been corrected in a separate set of specifications. It resulted in a handwritten entry on the drawings prior to approval by the building department that gave a third alternative as to how the dowels should be placed. The lack of clarity as to dowel placement and the creation of three possible installations was a failure by a professional engineer to use due care in design while performing in an engineering capacity.

    
    

16. As this disciplinary proceeding relates only to the design portion of this project, it is unknown if Respondent Wunder was actively involved in the revision accepted by the building department or whether he approved later shop drawings based upon the handwritten entry on the drawings submitted to the building department for approval.

    
    

17. The Recommended Bar Details on Sheet S1 of the drawings are ambiguous as they do not specify what portion of the required bottom bars may be stopped short of the supports. The details indicate that some bottom bars are cut off and do not extend into supports, but the number is not specified. An engineer's design must explain which bottom bars extend the full length of the span because the designer is the only one who knows this and he must tell the detailer what he wants. The details cannot be allocated to a fabricator for subsequent approval by the engineer because the bars not needed for moment must be developed in bond beyond the cut off point, according to code requirements. A fabricator would not have the expertise to read the moment diagram and design what the professional engineer's calculations require without specific instructions regarding the bottom bars. Separate specifications would not cure the problem with the ambiguities in the bottom bars because the ambiguities are in the pictures themselves. If the ambiguities could not be clarified in the pictures, they could not logically be clarified with the written word.

    
    

18. On Sheet S1, the requirements for top steel reinforcing bars in continuous concrete beams are ambiguous in that the required number and extent of those bars over supports between adjacent beams has not been defined in the drawings. The top bars are detailed in each separate beam with no regard as to how many bars are required between adjacent beams. For example, beams B-1, B-2 and B-3 are adjacent to each other on the second floor, the third floor and the roof. The top reinforcing for beam B-2 does not agree with that of beams B-1 and B-3. If the engineer had a particular area of steel required for this condition, then he has confused the contractor with this detail in the drawings. In this example, the amount of reinforcing varies on the roof beams by 33 percent. The amount of reinforcement should be the same for each bar.

19. The reason this ambiguity could not be resolved in specifications or shop drawings is that the ambiguity is inherent in the design, as represented in its pictorial form.

    
    

20. The alleged ambiguities as to Sheet S2 regarding anchor bolts and base plates were resolved in Respondent's favor in a separate specification booklet, and the shop drawings reviewed and accepted by Respondent. His details regarding the stairs were contained in the architectural portion of the drawings in the plans as opposed to the structural drawings. Based upon his design, and his review and approval of the shop drawings presented at hearing, the alleged ambiguities did not exist.

    
    

21. The CORRUFORM deck indicated on architectural Sheet A6 is structurally inadequate to safely support code specified loads at the indicated joist spacing. The manufacturer's recommendation, based on an allowable stress of 30,000 PSI on the span of 5 feet is 34 PSF, is a little over one half of the actual load on the deck. The actual load is almost twice what the manufacturer recommends. A separate set of specifications could not correct this deficiency because the properties specified indicate the deck is structurally inadequate to support the required loads set forth on Sheet S1 of the drawings.

    
    

22. In Sheet S5 of the drawings, all steel joists specified, except for those marked 8H3, are structurally inadequate to safely support code specified loads, according to the engineering calculations presented at hearing. This deficiency is repeated in the shop drawings. This structural inadequacy fails to exhibit due regard for acceptable standards of engineering principles.

    
    

23. The 12 WF27 steel beams shown on Sheet S5 lack the moment resisting capacity needed to safely support code specified loads on the roof. The moment resistance required for the roof beam is 81.89 foot kips. The allowable moment capacity for these beams is 68.4 foot kips. This is an inadequate carrying capacity which could not be cured with additional specifications because it is a design error.

    
    

24. The roof was redesigned by the Respondent prior to the roof construction.

    
    

25. The beam details provided in Sheet S6 are ambiguous in that they fail to define the number and extent of top reinforcing bars required over intermediate supports in continuous concrete members. It appears from the beam schedule that although B-1 joins to B-2 and B-2 joins to B-3, each beam calls for a different number and size of reinforced bars at the connections. This causes confusion as to whether there should be 3, 4 or 7 reinforcing bars intersecting with each other where the beams are supposed to join. Shop drawings and separate specifications would not cure this deficiency as the ambiguity is in the details of the design.

    
    

26. In addition to the structural design deficiencies alleged by the Department, Count I of the Third Amended Administrative Complaint alleges that various provisions of the applicable building codes in effect in the City of Cape Coral at the time the plans were sealed were violated in the design created by the Respondent.

    
    

27. The Cape Coral Enforcement Board has already determined that there were two rated separate stairways provided to exit the second and third floors of this building, and that the designed stairways met the applicable provisions of the Standard Building Code, as interpreted, applied, and enforced within the

    City of Cape Coral. The Board also determined that the travel distance to exits and the corridors met the fire, building, zoning, and related technical codes, as they were interpreted and enforced in this municipality.

    
    

28. The fire ratings for the elevator glass were in a separate specification book that Respondent Wunder submitted to the Fire Marshall prior to the Fire Marshall's determination that the sealed plans would be approved if the special conditions listed by the Fire Marshall on the drawings were met. These special conditions are missing and cannot be located. It is unknown if these special conditions related to the elevator glass or if the missing specifications were sufficient. The Respondent is found to have complied with the city's code requirements as to the elevator glass in the missing specification.

    
    

29. The Cape Coral Enforcement Board found the doors and walls of the exit pathway to be fire rated and in compliance with all fire, building, and related technical codes as interpreted and in force within this municipality. The building materials used were in a separate specification booklet and were used to purchase the materials prior to installation by the contractor.

    
    

30. The stairs designed by Respondent Wunder for this building decrease in width in the direction of exit travel. Both the Standard Building Code and the Life Safety Code in effect at the time of the design prohibit a decrease in the width of stairs in the direction of exit travel.

    
    

31. The stair landings were found to be in compliance by the Cape Coral Enforcement Board as the applicable codes were interpreted and enforced within the municipality.

    
    

32. Winding stairs, although prohibited as an exit stairway by the Standard Building Code, were designed by Respondent Wunder for use as an exit stairway in this commercial building.

    
    

33. The riser and tread design completed by Respondent Wunder did not comply with the Life Safety code adopted by the City of Cape Coral. The design error may have been one of the special conditions placed upon the design by the Fire Marshall prior to his approval of the plans for permit. Uniform risers were placed in the building when it was constructed.

    
    

34. In the Third Amended Administrative Complaint, the Department alleged that wood trim in exit stairways is prohibited. The Respondent stated in his answer that he was without knowledge of this prohibition. Because the Standard Building Code does allow wood trim if that wood trim meets certain flame spread characteristics and complies with the interior finish requirements, this allegation in the charging document did not sufficiently alert the Respondent as to what he was required to defend against concerning the wood trim. In addition, the Respondent is found to have satisfied code requirements for any wood trim in a separate specification booklet.

    
    

35. A manual fire alarm system was not provided by Respondent Wunder as part of his original design. A manual alarm system was made part of the revised drawings on October 31, 1982, which was well after the permit was issued by the municipality.

    
    

36. It is unknown if the omission of the manual fire alarm system in the design drawings was an omission, a matter of code interpretation, or whether the system was originally in the separate specification booklet reviewed by the Fire

    Marshall prior to his approval of the construction plans. This alleged deficiency is resolved in the Respondent's favor upon the determination that the system was in the separate specifications taken from the fire department.

    
    

37. The Department's allegations regarding a standpipe system were removed from consideration prior to the taking of evidence in the formal hearing.

    
    

38. The Cape Coral Enforcement Board determined that the vertical openings in the floor and roof of this building and the structural system are adequately fire protected under the city's interpretation of fire, building, and other technical codes in force in the city.

    
    

39. The handicap accessibility requirements were not met in the drawings completed by Respondent Wunder. During the design phase of the project, the Accessibility by Handicapped Persons Act was in effect in Florida. Even if the restrooms and water fountains in the facility meet the minimum requirements set forth in Section 553.48(2)(h), Florida Statutes, as a result of the separate specifications, the parking space configurations and building access do not meet all of the applicable minimum code requirements.

    
    

    Schooner Cove

    
    

40. In 1984, Respondent Wunder had an ongoing business relationship with the architectural firm of Stout & Gerald in Cape Coral, Florida. The architectural firm would hire Respondent Wunder to review the site drainage on the firm's project designs for buildings located on land within the City of Cape Coral. The following procedure was used by the architectural firm when it retained the Respondent in a couple of hundred projects: One of the architects would telephone the Respondent and ask him for a price on a particular number of units and would advise Respondent of the number of lots involved. The Respondent would be told whether the lots were inland or on a canal. Upon receiving this information, the Respondent would give the firm a price quote. When the project progressed to the point where a drainage review was needed, the drawings would be sent to the Respondent. He would either review, review and do some work on them, or say the drainage was all right. The architects would rely upon this review and go forward with finishing the design from that stage to its completion. When the customer needed signed sealed drawings for a building permit, the architect assigned to a particular project would place his seal on the project for the other work. The Respondent would place his seal on the plans as to the site drainage.

    
    

41. On October 22, 1984, Respondent Wunder signed and sealed the site plan for a twelve unit condominium project known as Schooner Cove in Cape Coral, Florida. His title block on the site plan indicated "DRAINAGE ONLY" beneath the name "C.A. Wunder Engineering, Inc."

    
    

42. The Respondent did not require a survey or a soil test of the site prior to his drainage review of the site plans because of his working professional knowledge of the soil conditions and the undeveloped lots within the City of Cape Coral at the time the site plans were given to him for review. This judgment call was reasonable based upon the architect's site plan and his failure to call anything unusual to Respondent's attention in the preliminary drainage design prepared by the architect. The Respondent did view the site before sealing the drainage design.

    
    

43. A drainage design is comprised of calculations, grading and retention. The drainage design for Schooner Cove relied upon the percolation method to

    dispose of excess water from ten year critical storm events because there is no overflow/outfall capability from the retention areas that collected the excess water.

    
    

44. Calculations are part of a drainage design. They should be performed with relation to a site and the drainage layout shown on the site plans. In determining the appropriate calculations, the engineer who places his seal on a site plan as to drainage must establish grades, overflow and how the drainage will be handled on the project. Both pre-construction and post-development conditions at the site must be reviewed.

    
    

45. The drainage design at the Schooner Cove project that received the Respondent's engineering seal was not adequate to provide for reasonably anticipated storm water runoff at the site, post-construction, in a ten year critical storm event. The flooding of the retention ponds in such a storm event should have been apparent to a professional engineer who reviewed the plans with due care and due regard for the principles of professional engineering.

    
    

    Mitigating Circumstances

    
    

46. The Department did not present any evidence of a previous disciplinary history in this or any other jurisdiction wherein the Respondent has practiced engineering.

    
    

47. Many of the deficiencies alleged in the drawings for Plaza 1300 which were created in 1982, have since been reformed by the Respondent within his engineering firm. He no longer prepares separate specification booklets for projects of this size, and he prepares more detailed drawings that do not rely upon his personal supervision and direction after the design phase of the project. These steps were taken by Respondent even before the violations were charged against him in these proceedings.

    
    

48. The way in which the drawings were prepared in Plaza 1300 was an unusual practice for Respondent, and was done in reliance upon the owner- developers' representation that Respondent would be responsible for the supervision of the construction of the building as a professional engineer.

    
    

49. Some of the deficiencies in the Plaza 1300 project proved by the Department were minor, and were corrected as the project was built.

    
    

50. The drainage design deficiencies in the Schooner Cove project can be corrected with a redesign of the drainage system at the site.

    
    

    Aggravating Circumstances

    
    

51. Some of the structural design deficiencies in the Plaza 1300 project drawings reveal that the building's deck, columns and beams may not safely support code specified loads if they were built according to the design in the drawings.

    
    

52. The owners of the condominiums in the Schooner Cove project must have the drainage redesigned to alleviate the flooding problems at the site.

    
    

53. The fact that the complaint alleges multiple counts of the same provision of Chapter 471 cannot be used for enhancement in this case because that provision of the rules regarding disciplinary guidelines was not in effect when either of the violations occurred. The Department did not prove that

    enhancement of penalties based upon multiple violations was a policy of the Board of Professional Engineers during the time the violations occurred.

    
    

    CONCLUSIONS OF LAW

    
    

54. The Division of Administrative Hearings has jurisdiction over the subject matter alleged in the Administrative Complaint and the parties to this proceeding pursuant to Sections 120.57(1), Florida Statutes.

    
    

55. Section 471.033(1)(g), Florida Statutes, empowers the Board of Professional Engineers to revoke, suspend, or otherwise discipline the license of Respondent if he is found guilty of negligence in the practice of engineering.

    
    

56. Such proceedings are penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). The burden is upon the regulatory agency to establish facts upon which its allegations of negligence are based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). It must be proved by clear and convincing evidence that the Respondent committed the violations set forth in the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

57. In Count I of the Third Amended Administrative Complaint, the Department alleged various deficiencies in the plans designed by Respondent Wunder for the construction of the building known as Plaza 1300. Although the Department was unable to prove by clear and convincing evidence the entire laundry list of alleged deficiencies, it was proved that Respondent Wunder was negligent in the practice of engineering as to the Plaza 1300 project in his design of the columns, the beams, the bars, the deck and the joist construction for use in this building. These deficient designs on the construction drawings affirm that the Respondent did not exercise due care in the practice of engineering when he created the design and placed his engineering seal upon it.

    
    

58. While all of these deficiencies may have been corrected prior to actual construction during review of shop drawings and structural inspections by this engineer, every one of these items contains confusing details or is structurally inadequate to support the loads it is required to support in the building, as designed and approved for construction by the permitting agency.

    
    

59. When the owner-developers accepted the drawings of the building design offered to them under seal by Respondent, they had a right to rely on the seal and to submit the drawings to the City of Cape Coral for a construction permit. Ambiguous drawings that could confuse a builder, along with the structural inadequacies, constitutes negligence in the practice of engineering. The Respondent Wunder failed to exercise due regard for the principles of professional engineering, and as a result, his clients were injured. They did not receive the safe, structurally sound design they had commissioned the Respondent to create in his capacity as a professional engineer. Accordingly, the Respondent is guilty of having violated Section 471.033(1)(g), Florida Statutes, in Count I of the Third Amended Administrative Complaint.

    
    

60. All of the alleged code violations filed by the Department in Count I were filed in good faith and each provision was reasonably interpreted by the agency. In the resolution of the disputes of material fact, however, greater weight was given to the previous interpretations of the applicable codes by the municipal code enforcement board by the Hearing Officer, pursuant to Chapter

    166, Florida Statutes, and Section 6, Art. VIII of the Constitution of the State of Florida.

    
    

61. The second count of the Third Amended Administrative Complaint alleges that Respondent Wunder was negligent in his drainage design on which he placed his engineering seal for the project known as Schooner Cove. Great weight was given to the project architect's testimony regarding the ongoing business relationship with the Respondent's engineering firm and what the Respondent was expected to do prior to his placement of his engineering seal on a site plan arranged for by that particular architectural firm. The Hearing Officer was unable to accept the Respondent's contention that he was hired to merely check the application of drainage formulas and the mathematical calculations. If due care is used in the practice of engineering and professional standards are applied, an engineer must do more than check calculations before he places his seal on a design. It is inherent in an adequate engineering review of a drainage design that the professional engineer should critically examine how the drainage will be handled on the project site. High standards of review should be applied even though the plan offered to the engineer is a "cookie cutter" plan that has been reviewed by him numerous times. Each project site is different, even in a small locale such as the City of Cape Coral. In this particular case, if professional standards had been applied and the site had been carefully judged by an engineer, it would have been apparent that the retention ponds would flood during a critical ten year storm event. As a result of Respondent's failure to apply the principles of professional engineering to the site and exercise due care in his review of the drainage plans, he is guilty of a second violation of Section 471.033(1)(g), Florida Statutes, alleged in Count II of the complaint.

    
    

62. Although the violations took place over two years apart, the applicable statute contained identical language during this particular period of time. Section 471.033(1)(g), Florida Statutes, provides as follows:

    
    

    1. The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:

       * * *

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

       
       

63. As noted in the statute, the penalties for the acts or omissions that violate subsection (1) are found in subsection (3) of the same law, which states:

(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:

1. Denial of an application for licensure.

2. Revocation or suspension of a license.

3. Imposition of an administrative fine not to exceed $1,000.00 for each count or separate offense.

4. Issuance of a reprimand.

5. Placement of the license on probation for a period of time and subject to the conditions the board may specify.

6. Restriction of the authorized scope of practice by the licensee.

RECOMMENDATION

In determining what penalty should be recommended for Respondent Wunder, the Hearing Officer considered the severity of the offenses, as well as the degree of harm to the consumers and the public. Based upon the foregoing, including all of the information made available to the Hearing Officer regarding aggravating and mitigating circumstances, it is recommended:

1. The Respondent Wunder be found guilty of having violated Section 471.033(1)(g), Florida Statutes, as alleged in Count I , Paragraph Nine of the Third Amended Administrative Complaint.

   
   

2. The Respondent Wunder be found guilty of having violated Section 471.033(1)(g), Florida Statutes, as alleged in Count II, Paragraph 15 of the Third Amended Administrative Complaint.

   
   

3. Respondent be fined $1,000.00 for each violation for a total of

$2,000.00, and receive a letter of reprimand from the Board. The Respondent's license should also be placed on probationary status for a period of three years.

RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of May, 1991.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5149

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #1.

2. Accepted. See HO #2.

3. Accepted. See HO #3.

4. Rejected, plans completed in 1981. Contrary to date on the drawings. See HO #4. Rejected, these were complete drawings. See HO #3. The rest of paragraph 4 is accepted. See HO #4.

5. Accepted.

6. Accepted. See HO #6 and #9.

7. Accepted. See HO #9.

8. Accepted. See HO #6.

9. Accepted.

10. Accepted.

11. Accepted. See HO #9.

12. Accepted. See HO #10.

13. Accepted.

14. Accepted.

15. Accepted.

16. Accepted.

17. Accepted. See HO #24.

18. Accepted.

19. Accepted.

20. Accepted.

21. Accepted.

22. Accepted.

23. Accepted.

24. Rejected. Speculative.

25. Accepted.

26. Accepted. See HO #11.

27. Accepted.

28. Accepted.

29. Accepted.

30. Accepted.

31. Accepted.

32. Rejected. Contrary to fact. See HO #3, #4, #7 and #8.

33. Rejected. Contrary to fact. See HO #3.

34. Accepted. See HO #8.

35. Accepted.

36. Accepted.

37. Accepted.

38. Accepted.

39. Accepted.

40. Accepted.

41. Accepted.

42. Accepted.

43. Accepted.

44. Rejected. Contrary to fact. See Chapter 166, Florida Statutes, Section 6, Art. VIII, Florida Constitution.

45. Accepted.

46. Rejected. Contrary to fact. See HO #9.

47. Accepted.

48. Accepted.

49. Rejected. Speculative

50. Accepted.

51. Accepted. See HO #14 and #15.

52. Accepted.

53. Rejected. See HO #3.

54. Rejected. Overbroad. Addressed individually in findings.

55. Accepted. See HO #13.

56. Accepted. See HO #13.

57. Rejected. Contrary to fact. See HO #13.

58. Accepted. See HO #14.

59. Accepted.

60. Accepted. See HO #15.

61. Accepted.

62. Accepted. See HO #17.

63. Accepted.

64. Accepted.

65. Accepted.

66. Accepted. See HO #17.

67. Accepted. See HO #18.

68. Accepted.

69. Accepted.

70. Accepted. See HO #19.

71. Accepted.

72. Rejected. Contrary to fact. See HO #12 and #20.

73. Accepted.

74. Accepted.

75. Rejected. Contrary to fact. See HO #12 and #20.

76. Rejected. Contrary to fact. See HO #20.

77. Rejected. Contrary to fact. See HO #20.

78. Rejected. Contrary to fact. See HO #12.

79. Accepted.

80. Rejected. Contrary to fact. See HO #3.

81. Rejected. Contrary to fact. See HO #3.

82. Rejected. Irrelevant.

83. Accepted.

84. Reject first two sentences. Relates to construction. The rest is accepted. See HO #21.

85. Accepted. See HO #12.

86. Rejected. Irrelevant.

87. Accepted.

88. Accepted.

89. Accepted.

90. Accepted. See HO #23.

91. Accepted.

92. Accepted.

93. Rejected. Not an allegation in the complaint.

94. Rejected. Not an allegation in the complaint.

95. Rejected. Contrary to fact. See HO #3, #7 and #10.

96. Accepted.

97. Rejected. Conclusionary. See HO #3.

98. Rejected. Irrelevant to charges.

99. Accepted.

100. Accepted. See HO #11.

101. Rejected. Contrary to facts of this case. See HO #3, #7 and #10.

102. Rejected. Contrary to this particular situation when drawing sealed. See HO #3.

103. Accepted.

104. Rejected. Contrary to fact.

105. Accepted.

106. Rejected. Contrary to fact.

107. Accepted. See HO #21.

108. Accepted. See HO #21.

109. Accepted. See HO #21.

110. Accepted. See HO #22.

111. Accepted.

112. Accepted. See HO #22.

113. Accepted. See HO #23.

114. Accepted.

115. Accepted. See HO #23.

116. Accepted. See HO #23.

117. Accepted. See HO #25.

118. Accepted. See HO #25.

119. Rejected. Irrelevant. See HO #3.

120. Accepted.

152(a). Rejected. Contrary to fact. See HO #28.

1. Rejected. Contrary to fact. See HO #28.

2. Rejected. Contrary to fact. See HO #28. 154(b). Accepted.

1. Accepted.

2. Accepted, but see HO #34.

3. Accepted. See HO #35.

4. Accepted.

5. Accepted. See HO #35.

6. Accepted.

7. Rejected. Not proved by clear and convincing evidence. See HO #36.

8. Rejected. Not established fact. See HO #36.

1. Rejected. Not alleged in complaint.

2. Rejected. Contrary to fact. See HO #38.

3. Rejected. Contrary to fact. See HO #38.

4. Rejected. Not alleged in complaint.

5. Rejected. Contrary to fact. See HO #29.

1. Accepted. See HO #41.

2. Accepted. See HO #41.

3. Accepted.

4. Accepted.

5. Accepted. See HO #43.

6. Accepted to critical storm 10-year event standard.

7. Rejected beyond 10-year critical year standard.

8. Accepted. See HO #42.

9. Accepted. See HO #44.

10. Accepted.

11. Accepted.

12. Accepted.

13. Accepted.

14. Accepted. See HO #45.

15. Accepted.

16. Accepted.

17. Accepted.

18. Accepted.

19. Accepted. See HO #45.

20. Accepted.

21. Accepted. See HO #45.

22. Accepted. See HO #45.

23. Accepted. See HO #45.

24. Accepted. See HO #45.

25. Rejected. Irrelevant. See HO #42.

26. Accepted.

27. Accepted. See HO #43.

28. Accepted. See HO #43.

29. Accepted. See HO #44 and #45.

30. Accepted. See HO #45.

31. Rejected. Contrary to fact. See HO #42.

32. Accepted.

33. Accepted.

34. Accepted.

Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See HO #3.

2. Accepted. See HO #3.

3. Accepted. See HO #8 and #9.

4. Accepted. See HO #9.

5. Rejected. Contrary to fact. See HO #4.

6. Accepted. See HO #9.

7. Accepted. See HO #9.

8. Accepted. See HO #8.

9. Accepted. See HO #8.

10. Accepted. See HO #8.

11. Accepted. See HO #10.

12. Accepted.

13. Accepted. See HO #9.

14. Accepted.

15. Accepted.

16. Accepted.

17. Accepted.

18. Accepted. See HO #9.

19. Accepted.

20. Rejected. Contrary to fact.

21. Rejected. Argument as opposed to factual determination. Attorney comments are not evidence.

22. Rejected. Improper summary.

23. Rejected. Improper summary.

24. Rejected. Irrelevant.

25. Rejected. Contrary to fact. See HO #14 and #15.

26. Accepted.

27. Accepted.

28. Accepted.

29. Accepted.

30. Accepted.

31. Accepted.

32. Accepted.

33. Accepted.

34. Accepted. See HO #11. Attorney comments not evidence, therefore, that portion is rejected.

35. Rejected. Improper summary.

36. Accepted.

37. Accepted.

38. Accepted.

39. Accepted.

40. Accepted.

41. Accepted.

42. Accepted.

43. Rejected. Attorney comments, not evidence.

44. Accepted.

45. Accepted.

46. Accepted.

47. Accepted.

48. Accepted.

49. Accepted.

50. Accepted.

51. Accepted. See HO #11.

52. Accepted.

53. Accepted.

54. Accepted.

55. Accepted.

56. Accepted, in part. See HO #27 - #39. Those parts rejected are contrary to fact.

57. Accepted. See HO #27 - #39.

58. Accepted. See HO #27.

59. Accepted. See HO #35.

60. Accepted.

61. Accepted.

62. Accepted.

63. Accepted.

64. Accepted.

65. Accepted.

66. Accepted.

67. Accepted. See HO #28.

68. Rejected. Contrary to fact. Unknown, but resolved in Respondent's favor. See HO #36.

69. Accepted.

70. Accepted.

71. Accepted.

72. Accepted. See HO #13.

73. Rejected. Contrary to fact. See HO #15.

74. Accepted, as his testimony only. Rejected as finding of fact. Improper summary.

75. Rejected. Irrelevant.

76. Rejected. Irrelevant.

77. Rejected. Irrelevant.

78. Rejected. Irrelevant.

79. Rejected. Irrelevant.

80. Rejected. Irrelevant.

81. Accepted, but not as to Respondent Wunder's design.

82. Accepted. See HO #27 - #39.

83. Accepted. See Preliminary Statement.

84. Accepted. See HO #11 and #12.

85. Accepted.

86. Accepted.

87. Rejected. Attorney's comments, not evidence.

88. Rejected. Contrary to fact. See HO #43 - #45.

89. Accepted.

90. Accepted.

91. Accepted.

92. Accepted.

93. Rejected. Irrelevant.

94. Rejected. Irrelevant.

95. Rejected. Irrelevant.

96. Accepted.

97. Rejected. Contrary to fact. See HO #40.

98. Accepted.

99. Accepted.

100. Accepted.

101. Accepted. See HO #40 and #43 - #45.

102. Accepted.

103. Accepted.

104. Rejected. Contrary to fact. See HO #43 - #45.

105. Rejected. Irrelevant.

106. Accepted.

107. Accepted.

108. Accepted.

109. Accepted.

110. Accepted.

111. Accepted.

112. Accepted.

113. Rejected. Contrary to fact. See HO #45.

114. Accepted.

115. Accepted.

116. Rejected. Contrary to fact.

1. Rejected. Weight and sufficiency determination.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted.

1. Accepted.

2. Accepted. See HO #40.

3. Accepted.

COPIES FURNISHED:

Wings S. Benton, Esquire Post Office Box 5676

Tallahassee, Florida 32314-5676

Diane E. McGill, Esquire TURK & SHIPP, P.A.

4223 Del Prado Boulevard Cape Coral, Florida 33904

Carrie Flynn, Acting Executive Director Florida Board of Professional Engineers Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0755

Jack McRay, Esquire General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 88-005149

Orders for Case No: 88-005149