STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 90-2420
)
MICHAEL V. CARR, P.E., )
)
Respondent. )
)
) DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 90-2421
)
MICHAEL V. CARR, P.E., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this matter came on for hearing in Panama City, Florida, before the Division of Administrative Hearings, by its duly-designated Hearing Officer, Diane Cleavinger, on October 15, 1990.
APPEARANCES
For Petitioner: John O. Williams, Esquire
1343 E. Tennessee Street Tallahassee, Florida 32308
For Respondent: Richard Smoak, Esquire
Post Office Box 1579 Panama City, Florida 32402
STATEMENT OF THE ISSUES
The issue in this proceeding is whether Respondent's engineering license should be disciplined for alleged violations of Chapter 471, Florida Statutes.
PRELIMINARY STATEMENT
On March 27, 1990, Petitioner, Department of Professional Regulation, filed two separate Administrative Complaints, Case Numbers 11677 and 11678, against Respondent, Michael V. Carr, P.E. Later, on July 5, 1990, Petitioner, Department of Professional Regulation filed an additional Administrative Complaint, Case Number 112231, against Respondent, Michael V. Carr, P.E. The three Administrative Complaints were consolidated. The Administrative Complaints alleged that Respondent's engineering license should be disciplined for violating Chapter 471, Florida Statutes. Specifically, the Administrative Complaints concerned the design and Engineering services rendered by Respondent on four structures located in Bay County, Florida. Case number 11677, involved an office building for Dr. Luis Zummarraga, a local psychiatrist. The Petitioner alleged that Respondent was negligent and unqualified to perform certain aspects of the design and that Respondent improperly affixed his seal to the plans. Case number 11678, involved an office structure which was owned and constructed by Dave Raulerson, an experienced contractor, and leased to Liberty National Life Insurance Company. Petitioner alleged that Respondent was negligent and that he improperly affixed his seal to the plans. Case number 112231, involved two structures, an office structure known as Bay Podiatry Center to be built by a local podiatrist and an office building known as the Eleventh Street Office Park. Eleventh Street Office Park was subsequently leased to HRS. As to each structure, Petitioner alleged that Respondent was negligent, that he lacked qualification, and that he improperly affixed his seal to those plans. Respondent disputed the allegations of the Administrative Complaints and requested a formal administrative hearing. The Administrative Complaints and Respondent's request were forwarded to the Division of Administrative Hearings.
At the hearing, the Petitioner presented the testimony of seven witnesses and offered thirteen exhibits into evidence. Respondent, Michael Carr, testified in his own behalf and presented the testimony of one witness.
Respondent also offered six exhibits into evidence. Additionally, Petitioner and Respondent entered into a stipulation of facts. The parties stipulation of facts is incorporated by reference into this Recommended Order.
Petitioner and Respondent filed their Proposed Recommended Orders on November 15, 1990. The parties' proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposed Findings of Fact are contained in the appendix to this Recommended Order.
FINDINGS OF FACT
Michael V. Carr, P.E. is a licensed professional engineer in the State of Florida, holding license number PE0026675. He has been engaged in the practice of engineering for more than 15 years. Mr. Carr's area of expertise is in civil and structural engineering. He is not experienced in electrical or mechanical engineering.
In 1989, Mr. Carr was employed as a full-time engineer and construction project manager by a local development and construction company. He also operated, on a part-time basis, an engineering business. The purpose of his part-time business was to offer engineering services to people who are experienced in the construction industry or are working with someone who is
experienced in the construction industry and have to varying degrees developed their own plans. Respondent also would serve as the construction manager on those projects.
During 1989, Respondent performed engineering services on four buildings owned by four different owners. All four buildings, involved relatively simple construction. Three of the buildings, Dr. Zummarraga's office, the Raulerson/Liberty National building, and Bay Podiatry Center, were designs comparable to residential structures. The Eleventh Street Office Park, while a larger structure, was a shell building and a simple structure, as well. Respondent was not retained to provide engineering for the construction of the interior of the Eleventh Street Office Park. In regards to all four buildings, the Respondent was not retained to provide plumbing, electrical or mechanical engineering services. Those items were left to the respective trades involved in the construction of the project. The limited plans submitted for the plumbing, electrical and mechanical aspects of the four buildings met the standard of practice in the Bay County area and were sufficiently complete for the various trades to perform its respective part of each project.
Moreover, the simplicity of the construction plans for these four buildings meant that standard construction methods are provided in the Standard Building Code and/or are known in the industry. Such standard construction methods include detail on roof systems, spacing and connections, as well as live load requirements. Therefore, not as much detail needed to be provided on the plans for these projects. It was standard engineering practice in the Bay County area not to include such detail if it was adequately covered in the building code.
In each instance, the owners of the buildings contacted Respondent to perform limited engineering services and to act as the construction manager on each project. Except for Mr. Raulerson, each owner had, prior to the time Respondent was hired, worked out some rough plans with a person qualified to create such plans and had a general idea of what type of building they wanted. Mr. Raulerson had drafted a fairly complete set of building plans. The goal of each owner of the four projects was to obtain a set of plans from what the owner already had developed which would at least minimally meet the local building code requirements sufficiently to allow a building permit to be issued for the construction project. In each instance, the Respondent's plans were submitted to the local building code enforcement agency which reviewed and accepted the plans. A building permit was issued for each building project. During the construction of each building, Respondent provided engineering inspections on each project. The plans submitted to the Bay County building department were not as-built plans and were never intended to be 100% complete plans since several of the owners had not made final decisions on a number of details such as roof line or plumbing facilities. 1/ Such open-ended plans were justified by the specific circumstances of each case and the professional judgment of Respondent, especially since Respondent acted as the project manager of the construction project. For purposes of clarity the facts and circumstances surrounding each building and any violations of Chapter 471, Florida Statutes, in regards to each building will be outlined individually. No alleged violations of Chapter 471, Florida Statutes, were established by the evidence unless it is specifically noted below.
Zummarraga Building
The plans for the Zummarraga building were signed and sealed by Respondent on October 24, 1989.
Dr. Zummarraga had contacted Rich Koehnemann of Koehnemann Construction Company to build an office building for him. Mr. Koehnemann sent the doctor to Jeff Robinson, a draftsman in the Bay County area, to work up a draft of the office plans the doctor desired. The doctor or Mr. Koehnemann gave Mr. Robinson a rough sketch of the office building. Mr. Robinson informed the doctor that a structural engineer would have to be involved since the County would require the plans to have the signature and seal of an architect or engineer in order to obtain a building permit. At that point, Respondent was retained to help develop a set of plans for Dr. Zummarraga. Mr. Carr was hired to draft plans for an office building. He was not hired by Dr. Zummarraga to design a building for a specific site. Therefore, no substantial site information, site work, grading or contouring details were provided on the plans for the Zummarraga project. By passing drafts of plans back and fort, a set of plans was devised by Mr. Robinson under the direct supervision and control of Respondent. Therefore, Respondent is not guilty of improperly affixing his seal to the plans for the Zummarraga project.
Later, after the structure's plans were finalized, the contractor determined that a detention pond would have to be designed for the site and a DER permit obtained for the pond. Respondent was retained to design a detention pond for the site and worked with DER to meet its extensive permitting requirements for such a pond. See Chapter 17-4, 17-25 and 17-512, Florida Administrative Code. That design was submitted to DER and a permit was issued for the detention pond. The original unsealed set of plans was amended for the building department. The specific details of the more rigid DER requirements, such as site work, grading and contouring, were not included on the plans filed with the building department and the owner did not contract with Respondent to include redundant detail on the building department's plans. Essentially, the building department's plans reflected the location of the detention pond and the area of the wetlands on the property which were subject to DER jurisdiction. Additionally, the plans contained some specifications which guided the contractor on pond requirements and in grading and contouring the site. These notes in conjunction with the DER permit requirements were sufficient to accomplish the building of the detention pond. Therefore, the desire of the owner and the avoidance of unnecessarily redundant detail between the DER permit and the building department's plans justified the lack of any extensive site work detail on the building department's set of plans for the Zummarraga project.
The plans devised by Mr. Carr did not contain any architectural work which was not incidental to the engineering work he performed. 2/ Therefore, Respondent is not guilty of improperly affixing his seal to plans depicting work outside his field or of practicing outside of his field.
In every instance, the plans of Dr. Zummarraga's office building were of sufficient detail to meet the building department's requirements for the issuance of a building permit, to allow the contractor to construct the project according to the Standard Building Code and to obtain a certificate of occupancy from the building department. Obviously, on these facts, the plans met the standard of practice in the community for the engineering services Respondent was hired to perform. Moreover, the lack of code related, electrical or mechanical details was justified under the facts and circumstances of the
Zummarraga project and it was well within the professional judgment of the Respondent to omit such details given the standards of practice in the Bay County area.
Raulerson/Liberty National Building
The plans for the Raulerson/Liberty National building were signed and sealed by Respondent on July 31, 1989.
Mr. Raulerson is an experienced developer in the Bay County area and acts as a general contractor on his own projects. Prior to hiring Respondent, Mr. Raulerson had been working with a local draftsman and Liberty National's architect to create a set of plans for the construction of Liberty National's office building in Bay County. Mr. Raulerson contacted Respondent on the advice of Bayne Collins, a local architect. Mr. Collins advised Mr. Raulerson that his plans were complete and all he needed was an engineer to check the wind loads. 3/
Mr. Raulerson gave Respondent the plans he had developed in conjunction with Liberty National's architect. Mr. Raulerson asked Mr. Carr to go through the plans and do a structural analysis to make sure that wind load requirements were met, that the building was structurally sound and that the building met the requirements for issuance of a building permit. Mr. Carr reviewed the plans and determined that they were an excellent set of plans for a very simple, sound and over-designed structure. He calculated the wind loads for the building and completed a structural analysis of the building. He also made one minor correction to the plans. Mr. Carr thought it ridiculous to put Mr. Raulerson to the expense of copying the Liberty National plans and essentially adopted the plans as his own. In this case, the fact that the plans were not drawn under Respondent's supervision is immaterial since the specific circumstances of the project did not call for such supervision in that the plans were drafted by experienced individuals. The plans were under Respondent's control at the point in time he was hired by Mr. Raulerson and the plans submitted to him for his review and approval, disapproval or amendment. Since copying the plans would be an unnecessary duplication of effort and Respondent did in fact exercise control over the plans by reviewing them before he affixed his seal to them, Respondent is not guilty of improperly affixing his seal to construction plans.
The Raulerson/Liberty National plans did not contain any architectural work which was not incidental to the engineering services he performed.
Anything in the plans which may be construed as "architectural work" was requested and specified by the owner to be in the plans. Therefore, Respondent is not guilty of improperly affixing his seal to plans depicting work outside his field or of practicing outside his field.
The plans did contain a roofing plan which called for pre-engineered trusses. The detail on the plan simply read "pre-engineered trusses." The plans did not contain any requirements relating to who was to design the pre- engineered trusses or requirements for structural submittals on the trusses. In the Bay county area "pre-engineered trusses" means trusses from Fagans, the local truss manufacturer. It is common knowledge, that Fagan's has a licensed engineer on staff who designs all of its pre-engineered trusses from the plans submitted to him. The pre-engineered trusses all have pre-construction documentation available. Also, submittals for the trusses accompany the trusses at the time of their delivery. With such knowledge, it is unnecessary to specify any more information or requirements regarding the truss manufacture on
the Liberty National plans. Similarly it was unnecessary to detail that submittals be given to the engineer since such submittals accompanied the trusses. The absence of any more detail was justified by the specific circumstances of the Liberty National project and well within the professional judgment of the Respondent given the nature of the pre-engineered truss market in the Bay County area and the fact that Respondent was the construction manager on the project.
As indicated, Respondent also acted as the construction project manager and would visit the construction site about once a week. At the point in time Mr. Raulerson was going to order the trusses, he decided to change the pitch of the roof, Mr. Raulerson did not advise Mr. Carr of his decision. Mr. Carr discovered Mr. Raulerson's change when he visited the construction site. Fortunately, Respondent had the project file with him. With the project file information and the submittals from the truss manufacturer, Respondent checked the load conditions for the changed pitch. No structural concerns were presented due to the change in pitch of the roof. The Liberty National plans were not amended because Mr. Raulerson did not contract for them to be amended. The plans were not required to be amended under Chapter 471, Florida Statutes. Respondent did not commit any violations of Chapter 471, Florida Statutes, in regards to his actions outlined above.
Bay Podiatry Center
The plans for the Bay Podiatry Center were signed and sealed by Respondent. However, the date the plans were signed and sealed was not included on the plans. It was inadvertently omitted by Respondent. The absence of the date is a de-minimis violation of Chapter 471, Florida Statues, and does not justify the imposition of any formal penalties. However, Respondent should be given a letter of guidance for the violation.
Respondent was not brought into the Bay Podiatry Center project until the final draft of the plans was to be done. Up until that time, Dr. Wilkerson, the owner of the project, had worked up preliminary drafts of the project in conjunction with his contractor and a local draftsman. They had developed a building with an attached carport. Mr. Carr did work directly with the draftsman on the final plan. Therefore, the plans were created under the direct supervision and control of Respondent. Since Respondent supervised and controlled the finalization of the project's plans at the crucial time and since the people involved in drafting the plans did not need more supervision and control, Respondent is not guilty of improperly using his seal.
There was no clear and convincing evidence which demonstrated that Respondent performed any architectural work which was not incidental to the engineering services he performed.
At the time Dr. Wilkerson desired to begin construction and obtain a building permit, he had not decided on a final roofing system. Therefore, the final plans called for the use of pre-engineered trusses and did not have a great amount of detail on a roof framing plan. There was some detail provided on the page of the plans detailing the wall section of the building. This page provided sufficient detail for a competent contractor to construct the building according to code. In fact, the building was so constructed and a certificate of occupancy was issued for the building upon its completion.
Again the trusses would come from Fagans. Petitioner did in fact review submittals from Fagan's truss engineer for the pre-engineered trusses used on the Bay Podiatry Center. Included in those submittals was a roofing plan in which the trusses were numbered to fit the sequence shown in the roofing plan. Respondent made sure the trusses and roof system were structurally sound. However, the owner did not contract with Respondent to amend the building department's plans. Chapter 471, Florida Statutes does not require such an amendment. Given the truss market in the Bay County area, the knowledge of Respondent regarding that market, the fact that a decision regarding a roof line had not been made when the plans were sealed, and that it was appropriate to leave such a decision for later in the construction process, no further detail was required in specifying the roof system for this project. No clear and convincing evidence was presented that demonstrated Respondent was negligent in his specifications on the roof system.
The only exception to the above was that Respondent did not specify the material of the trusses over the carport. Such information is not supplied by the Code and therefore must be supplied by the engineer. The oversight was caught by the contractor when he was preparing to order the trusses. The contractor contacted Mr. Carr. Mr. Carr determined what the appropriate truss material should be and informed the contractor. The inadequacy of the plans was resolved in less than ten minutes. The omission of such a detail is negligent on the part of Respondent and is a violation of Chapter 471, Florida Statutes. However, on these facts, the omission of the detail is minor.
Most of the light, plumbing and mechanical fixtures were prelocated by the owner prior to the time Respondent was hired. Respondent did not purport to draft plumbing, electrical or mechanical plans in detail in the final plan. Except in one respect, the detail was sufficient to guide the respective trades in the performance of their work and no more detail was required. The only exception was that Respondent approved a special detail of the hub drain/trap primer which was not in accordance to code. Since Respondent provided a special detail which did not meet the code requirements and which was not demonstrated to be justified by the circumstances of the Bay Podiatry project, he is guilty of negligence in the drawing of the Bay Podiatry plans in that aspect. Given the fact that this is a very small error in a larger project and that the drain was put in according to code during the construction of the building, Respondent's violation is a minor one.
Finally, the draftsman, without instructions from Respondent, put some plumbing and mechanical notes in the plans which clearly did not relate to the project. Respondent did not catch the inclusion of the notes and sealed the plans with the superfluous notes in them. However, it was obvious that the notes did not relate to the project and the trades involved ignored them. The notes did not cause any problems during the construction and were not shown to be inimical to the public health and safety. Therefore, while the inclusion of the notes was sloppy work, there was no negligence shown on the part of Respondent.
Eleventh Street Office Park
The plans for the Eleventh Street Office Park were signed and sealed by Respondent on January 31, 1989
The Eleventh Street Office Park project demonstrates best the dynamism involved in an evolving construction project. Often, as with the Eleventh Street project, an owner is not sure of the best method or design (usually determined by lowest cost) to utilize prior to construction or whether he wants to go forward with the expense of construction of a building given certain designs. On the Eleventh Street project three plans were developed, beginning with a three story structure with structural steel and precast walls, and ending with a large, one story, cement block structure on a cement slab. All the plans were for a shell building and did not include any floor plan. Preliminary rough drawings were completed by a draftsman who was hired by the project's owner. Respondent reviewed these rough drafts and over the course of several weeks made numerous structural changes. After the plans were re-drawn to Respondent's satisfaction, he submitted them to the building department in order to obtain a building permit. There is no question that the plans for the Eleventh Street project were drawn under Respondent's direct supervision and control.
Therefore, Respondent is not guilty of improperly using his seal.
The plans submitted to the building department were not intended to be complete. For instance, the owner had not decided where to locate the restrooms in the building. However, the owner, for unspecified reasons, wanted to proceed with obtaining a building permit. With that decision open, the detail for the plumbing aspects of the plan were not intended to be complete or to match as to specifics. Such limited detail was intended only to place the building department and the contractor on notice that some consideration had to be given to the upcoming plumbing. The same considerations applied to the electrical and mechanical aspects of the plans. All of the evidence concerning deficiencies in the electrical design of the Eleventh Street Office Park was based on Petitioner's expert's review of a single sheet of plans obtained from the building Department. This sheet is mysterious as to its origins and relationship to the Eleventh Street project. The sheet was not prepared by Respondent, did not bear his seal, lacked the fire department's approval which was present on other pages of the project's plans, and was a different size paper than those sealed by Respondent. There was no substantial evidence which demonstrated Respondent had prepared this sheet or that the sheet reflected the electrical plans used in the Eleventh Street project. The absence of extensive detail or the provision of extraneous notes on the electrical, mechanical and plumbing aspects of the plans were justified by the fact that the owner of the project had not made up his mind in regards to those details, such decisions could be determined later in the construction process, the Eleventh Street project was a shell building and there was sufficient detail for the licensed trades to perform their tasks when the time came and the decisions were made. The incompleteness of these plans in that regard was clearly justified by the specific circumstances of the Eleventh Street project. Therefore, Respondent is not guilty of violating Chapter 471, Florida Statutes.
As with the Bay Podiatry project, the only exception to the above was that the hub drain/trap primer detail was not in accordance with the building code. For the reasons stated in regards to the Bay Podiatry project, the provision of the hub drain detail constitutes negligence in the practice of engineering in violation of Section 471.033(1)(g), Florida Statutes. Again the violation is a minor one.
Similarly, as with the other three projects, no substantial evidence was presented that Respondent performed any architectural services in relation to the Eleventh Street project which were not incidental to the engineering services he performed.
There was a great deal of debate among the experts as to the adequacy of the structural aspects of the Eleventh Street Office Park and whether they met the standards of practice for engineers. Most of the debate centered on how much detail needed to be placed on the plans and whether the detail provided was sufficient for a contractor to build a safe building. The better evidence demonstrated that the amount of detail on the plans was sufficient to enable a contractor to build a safe building. The detail which was not contained on the plans was contained in the building code and did not need to be included on the plans. Such a practice comports with the standard of practice in the Bay County area and is a specific circumstance of a project which would enable a professional engineer to exercise his judgment and not include such detail. 4/ Moreover, although the calculations were not contained on the plans, Respondent did, in fact, determine the structural soundness of the Eleventh Street project. Therefore, Respondent is not guilty of violating Section 471.033(1)(g), Florida Statutes.
The only exception to the above is that Respondent was negligent in specifying the type of mortar to be used in the concrete walls. In essence Respondent specified three different types of mortars. These mortars significantly differed as to each mortar's respective strength. Use of an improper mortar in the concrete walls can effect the strength of the wall and cause them to be unsafe. This inconsistency in detail or specifications differs from the inconsistency in details or specifications where such details or specifications obviously do not apply to the project or where such details or specifications have no contrary reference in the plans. The latter two cases while showing sloppy work are not necessarily indicative of negligence and depend greatly on the surrounding facts and circumstances before a finding of negligence can be made. The inconsistency with the mortar is indicative of negligence since a contractor may very well use the wrong mortar on a project. In this case, the inconsistency did not become a problem and Respondent was present as the project manager to handle any problem which may have arisen. Therefore, the violation of Chapter 471, Florida Statutes, is moderate to minor.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.57, Florida Statutes.
Chapter 471, Florida Statutes, is the statute regulating the practice of engineering. Section 471.025(1) and (3), Florida Statutes, reads as follows, in pertinent part:
The board shall prescribe, by rule, a form of seal to be used by registrants holding valid certificates of registration. Each registrant shall obtain an impression-type metal seal in the form aforesaid. All plans, specifications, plats, or reports prepared or issued by the registrant and being filed for public record shall be
signed by the registrant, dated, and stamped with said seal. Such signature, date, and seal shall be evidence of the authenticity of that to which they are affixed. It is unlawful for any
person to stamp or seal any document with a seal after his certificate of registration has expired or been revoked or suspended, unless reinstated or reissued.
(3) No registrant shall affix or permit to be affixed his seal or name to any plan, specification, drawing, or other document which depicts work which he is not licensed to perform or which is beyond his profession of specialty therein.
Section 471.033(1) and (2), Florida Statutes, reads as follows, in pertinent part:
The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:
Violation of any provision of Section 471.031 of Section 455.227(1) or any other provision of this chapter: ...
(g) Fraud or deceit, negligence, incompetence, or misconduct, in the practice of engineering. ...
The board shall specify, by rule, what acts or omissions constitute a:
violation of subsection (1).
Subsections (3) and (5) of Rule 21H-10.001, Florida Administrative Code, read as follows, in pertinent part:
(3)(a) A professional engineer shall not be negligent in the practice of engineering. The term negligence set forth in 471.033(1)(g), Florida Statutes, is herein defined as the failure by a professional engineer to utilize due care in performing in an engineering capacity or failing to have due regard for acceptable standards of engineering principles. 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.
(b) Failure to comply with the procedures set forth in the publication "Statements on Responsibilities of Professional Engineers, Second Edition" as published and adopted by the Board of
Professional Engineers shall be considered as noncompliance with this section unless the deviation or departures therefrom are justified by the specific circumstances of the project in question and the sound professional judgment of the professional engineer. (Emphasis supplied.)
(5) A professional engineer shall not commit misconduct in the practice of engineering. Misconduct in the practice of engineering as set forth in 471.033(1)(g), Florida Statutes, shall include, but not be limited to:
(d) affixing a signature or seal to any engineering plan of (or) document in a subject matter over which a professional engineer lacks competence because of inadequate training or experience;
(n) violation of any law of the State of Florida directly regulating the practice of engineering;
Section 21H-19.001(3)(b) specifically adopts the publication "Statements on Responsibilities of Professional Engineers, Second Edition," as published and adopted by the Board of Professional Engineers. The pertinent portions thereof are as follows:
REVIEW OF STRUCTURAL SUBMITTALS
When the Structural Engineer of Record elects to delegate a portion of his responsibility to a Specialty Engineer the Structural Engineer of Record is obligated in his review of Structural Submittals to conform the following:
That the specified Structural Submittals have been furnished.
That the Structural Submittals have been prepared by a qualified person (The seal and signature of a Florida Registered Professional Engineer may be acceptable evidence of this.)
That the Speciality Engineer had understood the intent of the Structural Engineer of Record and used the specified criteria. (No detailed check of calculations is required.)
That the configuration set forth in the Structural Submittals is consistent with that on the Structural Construction Documents. (No detailed check of dimensions is required except at interface areas.)
USE OF THE SEAL
It is emphasized that a Professional Engineer may not affix his seal to any drawing not prepared under his direct supervision and control. It is further emphasized that when a Professional Engineer does affix his seal to a drawing he is required to add his signature and the date of that signature.
Any Corporation or Partnership which offers Engineering services must hold a Certificate of Authorization from the Florida State Board of Professional Engineers.
Statements of Responsibilities of Professional Engineers on the Design of Structures Utilizing Prefabricated Wood Components
Where a Professional Engineer is required under local code or statutes, the Structural Engineer of Record may delegate responsibility for the design of wood structural components or structural systems utilizing those components, to a Specialty Engineer. In that case, the Structural Engineer of Record shall require Structural Submissions for his review as an indication that his intent has been understood and that the specified criteria have been used. Structural Submittals shall bear the impressed seal and signature of the Specialty Engineer.
Structural Construction Documents shall indicate provisions for support, bearing, cross and lateral bracing, bracing to transfer member buckling (including erection) forces to the structure, and for all bracing and anchorage required to resist uplift and lateral forces.
Structural Submittals shall include component details and system layout drawings. Such submittals shall identify the project and list loading and other criteria. Drawings shall identify and locate all components and shall specify member sizes, bracing, anchorage, connection and all other necessary fabrication and erection information.
Statements of Responsibilities of Professional Engineers on the Design of Foundations
Structural Construction Documents shall designate the assumed foundation capacity and shall include data indicating the nature of the foundation material anticipated.
Site preparation requirements, necessary to provide the assumed foundation capacity, shall be specified in the Structural Construction Documents.
The assumed foundation capacity shall be determined on the basis of scientific analysis utilizing investigations, tests or studies conducted personally by the Engineer of Record or by a Florida Professional Registered Engineer specializing in soils analysis.
The Petitioner has the burden of proving the allegations of the Administrative Complaints by clear and convincing evidence, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Count 2 of the Administrative Complaint in Case Number 11677 (Zummarraga) and Count 2 of the Administrative Complaint in Case Number 11678 (Raulerson/Liberty National) charge Respondent with affixing his seal to plans which were not prepared by him or were not prepared under his supervision, direction or control, i.e. "plan stamping." This charge was not made in reference to Case Number 112231 (Bay Podiatry and the Eleventh Street Office Park). Clearly, the plan stamping allegations were not established as to the plans which Respondent sealed for the Zummarraga building since Respondent had meaningful supervision, direction and control of those plans. Therefore, Count
2 in Case Number 11677 should be dismissed.
However, a more serious issue of "plan-stamping" is raised in regards to the facts and circumstances surrounding the development of the Raulerson/Liberty National plans. In that case, Respondent was not involved in the development of those plans until the final draft when Mr. Raulerson brought the plans to him for his engineering input and to review the plans so that he could put his seal on them. Respondent did in fact review the plans and except for a minor handwritten correction saw no need to put Mr. Raulerson to the expense of copying an already adequate set of plans. Section 471.033(1)(j), Florida Statutes, states that an engineer may be disciplined for:
(j) Affixing or permitting to be affixed his seal or his name to any plans, designs, drawings, or specifications which were not prepared by him or under his responsible supervision, direction, or control;
The purpose of the statute is to prevent the sealing of plans by an engineer who has not in fact reviewed such plans and had the opportunity for meaningful input into them. Importantly, the statute does not contain any time restrictions on when such supervision, direction or control should be exercised or how much supervision, direction, or control is necessary. Of further importance, is the fact that the statute uses the disjunctive word "or" in its
language. Clearly the statute requires only one of the listed activities of supervision or direction or control be exercised by a licensee over plans he or she did not personally draft. Additionally, the statute's purpose would require that such supervision or direction or control be meaningful to the end product. Therefore, if an engineer either supervises or directs or controls the drafting of construction plans at a time in their genesis which gives such supervision or direction or control meaning in the outcome of the plans, then an engineer may place his seal on the plans and accept responsibility for the documents he or she has sealed.
At the point in time Mr. Raulerson brought the plans to Respondent for his review and Respondent in fact reviewed them, those plans were under his direction and control. Respondent was in fact undertaking responsibility for them. When Respondent was satisfied that the plans were acceptable to him he affixed his seal to them and submitted them to the building department in order to obtain a building permit. Respondent's actions in regards to the Raulerson plans fall within the statute's requirements. Therefore, Respondent is not guilty of violating Section 471.033(1)(j), Florida Statutes.
Counts 3 and 4 of the Administrative Complaint in Case Number 11677, Counts 3 and 4 of the Administrative Complaint in Case Number 11678 and Counts 1, 2, 3, 4 and 5, of the Administrative Complaint in Case Number 112231 charge Respondent with violating Section 471.033(1)(g), Florida States, through negligent preparation of the various building plans in regards to the specifications or notations dealing with structural, mechanical or electrical aspects of the plans and/or by improperly delegating responsibility for those aspects of the plans. Of importance in analyzing any of the several negligence counts contained in the Administrative Complaints is the language of Rule 21H- 10.001, Florida Administrative Code, set forth in paragraph 4 above. In this case, the acceptable standards of engineering practice are established in the "Statements on Responsibilities of Professional Engineers, Second Edition." However, those "Statements" may be deviated from if the professional judgment of the engineer and the specific circumstances of a construction project justify a departure from those standards. An obvious limitation on any departure would be whether the departure would effect the safety, health or property of the public. 6/ Such circumstances depend greatly on the facts of a particular case and can be shown by local practice, knowledge of the engineer regarding local contractors, subcontractors and area markets, owner desires, contractual arrangements with owners, whether the engineer will continue as the project manager or whether some other document, such as the building code or permit, supply the required detail. An expert's opinion finding negligence cannot be given credence unless such facts are taken into account by that expert. If such facts are not considered or are ignored by that expert then such an opinion is, at best, a flyspecking analysis of an engineer's plans based on hypothetical assumptions. For the most part, the Department's experts' opinions fell into such a category, especially since none of the Department's experts were familiar with the practice of engineering in Bay County. Any one of these specific circumstances can be a basis for departure from the requirements outlined in the "Statements of Responsibilities." Therefore, where such specific circumstances are shown, the failure of an engineer to comply with the "Statements of Responsibilities" is not the negligent practice of engineering.
Count 3 of the Administrative Complaint in Case Number 11677, Count 3 of the Administrative Complaint in Case Number 11678 and part of Counts 4 and 5 of the Administrative Complaint in Case Number 112231 charge Respondent with violating Section 471.033(1)(g), Florida Statutes, through negligent preparation of the various building plans in regards to the specifications or notations
dealing with pre-engineered roof trusses and/or by improperly delegating responsibility for those trusses. In this case the Department did not establish that the method by which Respondent specified pre-engineered roof trusses or the delegation of responsibility for those trusses was negligent or improper. The nature of the truss market in Bay County plus the fact that Respondent served as project manager on all four projects established specific circumstances for each project which justified departure from the usual requirements of Rule 21H- 10.001, Florida Administrative Code. Moreover, Respondent's method of specification met the standard of practice for engineering in Bay County.
The only act of negligence committed by Respondent in regards to the roof trusses occurred on the Bay Podiatry project. Respondent did not specify the material of the trusses which were to be employed over the car port of the project. Such a detail is necessary to give a contractor all of the information he needs to construct the building. As indicated in the findings of fact, this violation is minor. With this one exception, Count 3 in Case Number 11677, Count 3 in Case Number 11678 and the portions of Counts 4 and 5 in Case Number 112231 dealing with the roof should be dismissed.
Count 4 of the Administrative Complaint in Case Number 11677, Count 4 of the Administrative Complaint in Case Number 11678 and Counts 1, 2, 3, part of 5, 8, 9 and 10 of the Administrative Complaint in Case Number 112231 charged Respondent with negligence in the practice of engineering because the mechanical, electrical and structural aspects of the various construction plan were incomplete in violation of Section 471.033(1)(g), Florida Statutes or that Respondent as not qualified to perform the electrical and mechanical aspects of the various building plans and therefore, improperly affixed his seal to plans depicting such work in violation of Sections 471.033(1)(a), Florida Statutes and 471.025(3). Except as noted in the findings of fact concerning Bay Podiatry Center and Eleventh Street Office Park, none of the plans for the four buildings were incomplete in their mechanical, plumbing or electrical aspects. The face of the plans themselves show that no significant amount of electrical detail is included in any of them. The plans do include enough detail to allow a person in that special trade to perform the work necessary to complete that portion of the project. Section 471.003(3)(i), Florida Statutes, recognizes this practice and such "incomplete" plans meet the standard of practice in the Bay County area. Based on the contract for services Respondent had with his clients and the standards of practice in the Bay County area the level of completeness attained in regard to the plans for the four buildings, Respondent is not guilty of committing negligence in the practice of engineering based on the electrical plumbing or mechanical aspects of those plans. Such incomplete plans were justified in Respondent's professional judgement and were called for by the scope of the project for the four buildings. Respondent is, likewise, not guilty of affixing his seal to plans depicting work outside of his field.
The only exception to the above, was in regard to the Bay Podiatry Center and the Eleventh Street Office Park. Those two plans provided a detail for the hub drain which did not meet the code. The detail's deviation from the code was not shown by Respondent to be justified by the specific circumstances of the Bay Podiatry project or the Eleventh Street project. Therefore, Respondent is guilty of violating Section 471.033(1)(g), Florida Statutes, as pled in part of Counts 1 and 2 in Case Number 112231. The violation is minor and deserves only minimal discipline. The remaining portions of Counts 1 and 2 and all of Counts 3, 8, 9, and 10 in Case Number 112231 as well as all of Count
4 in Case Number 11677 and Count 4 in Case Number 11678 should be dismissed.
Count 11 of the Administrative Complaint in Case Number 112231 charged Respondent with violation of Sections 471.033(1)(a) and 471.025(1) by failing to date his signature and seal on the Bay Podiatry plans. Petitioner presented clear and convincing evidence of this violation. The evidence showed that this failure to date the Bay Podiatry plans was insignificant and only of an "i" dotting and "t" crossing technical nature and not necessarily related to any safety considerations involved in plan drafting. Therefore, the violation is
de-minimis and not deserving of any formal disciplinary penalty. A letter of guidance should be issued to Respondent for this violation.
This case arose out of a turf battle between some local architects and engineers practicing in Bay County, Florida. The turf battle is due to the fact that Chapter 471, Florida Statutes, governing engineers and Chapter 481, Florida Statutes, governing architects, overlap to a considerable extent. Specifically Section 471.003(3), Florida Statutes, states in pertinent part:
(3) Notwithstanding the provisions of Section 471.001-471.039 or of any other law, no registered engineer whose principle practice is civil or structural engineering, or employee or subordinate under the responsible supervision or control of the engineer, is precluded from performing architectural services which are purely incidental to his engineering practice, nor is any registered architect, or employee or subordinate under the responsible supervision or control of the architect, precluded from performing engineering services which are purely incidental to his architectural practice.
Section 471.005(6), Florida Statutes, defines "engineering" as follows:
(6) "Engineering" includes the term "professional engineering" and means any service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning, and design of engineering works and systems, planning the use of land and water, teaching of the principles and methods of engineering design, engineering surveys, and the inspection of construction for the purpose of determining in general if the work is proceeding in compliance with drawings and specifications, any of which embraces such services or work,
either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects and industrial or consumer products or equipment of a mechanical, electrical, hydraulic, pneumatic, or thermal nature, insofar as they involve safeguarding life, health or property; and includes such other professional services as may be necessary to the planning, progress, and completion of any engineering services.
Count 1 of the Administrative Complaint in Case Number 11677 (Zummarraga), Count 1 of the Administrative Complaint in Case Number 11678 (Raulerson/Liberty National) and Counts 6 and 7 of the Administrative Complaint in Case Number 112231 (Bay Podiatry and Eleventh Street Office Park) charge Respondent with performing architectural services which were not incidental to the engineering services he rendered in violation of Subsections 471.003(3) and 471.033(1)(a), Florida Statutes and also placing his seal on plans containing such architectural work for which he was not qualified in violation of Section 471.25(3), Florida Statutes. There was nothing in this case which clearly and convincingly indicated that Respondent performed architectural services which were not incidental to his engineering practice and specifically to the completion of the projects in which he was engaged, i.e., construction and completion of the office spaces he and the owner had drafted. To complete such a task it was necessary that the plans comply with all the various codes in order to obtain a building permit, to know the finishes on the walls, the widths of the halls and the swings of the doors, etc.. It is important in this case, that much of the information for these items was supplied by the owner who wanted the information in his plans. Incorporating such owner input into the owner's plans is not the practice of architecture since it does not require any professional judgment on the part of the engineer. Such inclusions are purely incidental to the completion of an engineering project. In instances where the information was not supplied by the owner, Respondent had a legitimate need to exercise his professional judgment in order to achieve a building for which a building permit could be issued and the construction project completed. Therefore, Respondent is not guilty of violating Sections 471.003, 471.025(3), and 471.033(1)(a), Florida Statutes, and these Counts should be dismissed. See Verich v. Florida State Board of Architecture, 239 So.2d 29 (Fla. 4th DCA 1970) and Commentary on the Florida Board of Professional Engineers Policy Statements, Adopted June 6, 1990 and December 5, 1990.
Subsection 471.033(2), Florida Statutes provides the penalties for violations of Chapter 471, Florida Statutes, by a licensee. Subsection 471.033(3), Florida Statutes, states, in pertinent part:
(3) When the board finds any person guilty of any the grounds set forth in subsection
(1) it may enter an order imposing one or more of the following penalties:
Denial of an application for licensure.
Revocation or suspension of a license.
Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify.
Restriction of the authorized scope of practice by the licensee.
In this case, the Petitioner has established that the Respondent committed five violations of Chapter 471, Florida Statutes. The violation regarding the inadvertent omission of a date on a set of sealed plans is not deserving of formal punishment because of its de-minimis nature. However, the four violations involving negligence in the practice of engineering do require the imposition of formal punishment. The two violations involving the hub drain are essentially the same violation and should be treated as one infraction. The violations were minor. The violation involving the omission of a specification for the truss material on the Bay Podiatry project was, likewise, minor. The violation involving the mortar is more serious because it involved the structural strength and safety of the walls. All of the violations involved inattention to detail on the Respondent's part, suggesting the necessity of a course of instruction on the proper methods of drafting plans. Therefore, an appropriate penalty for the three minor violations would be a $250 fine for the two violations involving the hub drain and the material of the roof truss, a
$500 fine for the violation involving the mortar, and a period of probation of one year, during which the Respondent should be required to take and pass a course on the proper methods of plan drafting.
That the Department enter a Final Order finding Respondent guilty of five violations of Chapter 471, Florida Statutes, assessing a total fine of $750.00 and placing the Respondent's license on probation for a period of one year, during which Respondent should be required to take and pass a course or courses on the proper methods of plan drafting for the four violations involving negligence; and issuing a letter of guidance for the violation involving the date.
DONE and ENTERED this 22nd day of February, 1991, in Tallahassee, Florida.
DIANE CLEAVINGER
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 22nd day of February, 1991.
ENDNOTES
1/ There is nothing in Chapter 471, Florida Statues, which indicates that an engineer's services cannot be limited by contract to the level of service contracted for in this case, i.e., to obtain construction plans of sufficient detail to allow a building permit to be issued but allowing certain construction decisions involving both structural, mechanical and electrical elements to be determined during the construction of the project.
2/ Running throughout this case in regards to alleged "architectural work" on all four construction projects are items which Respondent placed in the plans which the owner desired. The evidence did not reveal any endeavor on the part of Respondent to perform architectural services in regards to these items.
There is a vast difference between exercising architectural judgments in specifying certain materials to fill certain criteria in a set of plans and placing information supplied by an owner which that owner desires in a set of plans. In the first instance, such activity may be the practice of architecture which is prohibited unless incidental to the engineering services being rendered. In the second instance, such activity is not the practice of architecture but is only acknowledgment of what the owner desires in his plans and is for the accommodation of the owner/client. Acknowledging the desires of an owner/client is wholly incidental to the practice of engineering and it is appropriate for such items to be placed in the owners' plans.
3/ Mr. Collins told Mr. Raulerson that he did not have time to copy the Liberty National plans with the Collins logo on them and that to do so would cost a considerable sum of money.
4/ A prime example in this case was the lack of detail regarding the connection of the roof system to the interior load bearing walls. The Department's expert claimed the standards, i.e., the fastening schedule, contained in the code was not adequate to enable a contractor to determine how to fasten these walls to the roof given the detail in the plans. Respondent's witness demonstrated at the hearing that a contractor could, in fact, make such a determination.
Similarly, the code contains live load requirements which were determinable form the detail in the plans.
5/ Petitioner's expert placed much emphasis on the portion of this statute referring to the seal authenticating the document to which it is affixed. The Department's expert appeared to believe that the use of the word "authenticity" in the statute creates a requirement of completeness in the plans in the sense that other documents such as the building code or DER permits could not supplement construction plans. This interpretation is in error and is not supported by the dynamic nature and reality of the construction process the Board's own rules or various building department's requirements for the issuance of a building permit and certificate of occupancy. In essence, the Department's expert's interpretation would require as-built plans to be done in every instance. Such a requirement is clearly not the law. The most that can be said of the statute's authenticity language is that it is a rule of evidence which eliminates the need to call as a witness the person who keeps the plan or record for the building department. Any other statutory construction strains the language of the statute and is unreasonable.
6/ It is incumbent upon the Department to present evidence that a proposed departure would have such an effect.
APPENDIX
CASE NO. 90-2420 and 90-2421
1. The facts contained in paragraphs 1, 2, 3, 4, 27 and 40 of Petitioner's Proposed Findings of Fact are adopted in substance insofar as material.
2. The facts contained in paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18,
19, 20, 21, 22, 23, 24, 25, 25, 26, 28, 29, 30, 32, 33, 34, 36, 37, 38 and 39 of
Petitioner's Proposed Findings of Fact were not shown by the evidence.
The facts contained in paragraph 5, 6 and 31 of Petitioner's Proposed Findings of Fact are subordinate.
The facts contained in the first sentence of paragraph 7 of Petitioner's Proposed Findings of Fact are adopted. The remainder of the paragraph was not shown by the evidence.
The facts contained paragraphs 35 of Petitioner Proposed Findings of Fact were not shown by the evidence except as to the carport regarding specifying material of the beams.
The facts contained in paragraphs 1, 3, 4, 5, & 6 of Respondent's Proposed Findings of Fact are adopted in substance, insofaras material.
The facts contained in the first sentence of paragraph 2 of Respondent's Proposed Findings of Fact are adopted. The remainder of the paragraph is subordinate.
COPIES FURNISHED:
John O. Williams, Esquire 1343 E. Tennessee Street Tallahassee, Florida 32308
Richard Smoak, Esquire Post Office Box 1579 Panama City, Florida 32402
Jack McRay General Counsel
1940 North Monroe Street Tallahassee, Florida 32399-0792
Rex Smith Executive Director
Department of Professional Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0750
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.
| Issue Date | Proceedings |
|---|---|
| Feb. 22, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 22, 1991 | Recommended Order | Civil engineers license-use of seal on plans not drafted by engineer and practice of architecture; not violation-malpractice; shown-fine |
CONSTRUCTION INDUSTRY LICENSING BOARD vs. GEORGE LONGINO, 90-002420 (1990)
CONSTRUCTION INDUSTRY LICENSING BOARD vs MARVIN M. KAY, 90-002420 (1990)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. STEPHEN J. BOROVINA, 90-002420 (1990)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. JOHN W. FARRALL, 90-002420 (1990)
