STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT ) CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 00-2833PL

)

WILLIAM C. BRACKEN, )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Tampa, Florida, on November 28 and 29, 2000.

APPEARANCES

For Petitioner: William H. Hollimon

Ausley & McMullen Post Office Box 391

Tallahassee, Florida 32302

For Respondent: Brent Wadsworth

Post Office Box 270118 Tampa, Florida 33688

David P. Rankin

3837 Northdale Boulevard

Suite 332

Tampa, Florida 33624

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in the negligent practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint dated February 3, 2000, Petitioner alleged that Respondent was the structural engineer of record for the Sorrentino Residence project in Tampa. The Administrative Complaint alleges that Respondent signed and sealed structural engineering plans for the Sorrentino Residence project in June 1997, but numerous deficiencies in the plans indicate a failure by Respondent to exercise due care in engineering or a failure by Respondent to exercise due regard for acceptable standards of engineering principles.

Count One of the Administrative Complaint alleges that Respondent’s structural drawings for the Sorrentino Residence project are deficient because openings interrupt the vertical stud framing of the front wall of the living room and front wall of the kitchen, and the drawings do not specify the necessary supplemental framing. Count One alleges that Respondent thus committed negligence in the practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes.

Petitioner dismissed Count Two of the Administrative Complaint at the final hearing.

Count Three of the Administrative Complaint alleges that Respondent’s structural drawings for the Sorrentino Residence project are deficient because they fail to specify details of the floor and roof diaphragms (sheathing thickness and nailing). Count Three alleges that Respondent thus committed negligence in the practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes.

Count Four of the Administrative Complaint alleges that Respondent's structural drawings for the Sorrentino Residence project are deficient because the roof framing plan provides conflicting information by showing gable trusses when the plans indicate the absence of gable trusses. Count Four alleges that Respondent thus committed negligence in the practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes.

Respondent timely requested a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence ten exhibits: Petitioner Exhibits 1-10 (Petitioner Exhibits 9 and 10 are Respondent Exhibits 1 and 2, respectively). Respondent called five witnesses and offered into evidence 14 exhibits: Respondent Exhibits 15, 17, 19-21, 23-30, and 32. All exhibits were admitted.

The court reporter filed the transcript on December 21, 2000.

FINDINGS OF FACT

1. Respondent has been a licensed professional engineer in Florida since 1994, holding license number 47676. He is not licensed in any other states.

2. Respondent is a member of the American Society of Civil Engineers, National Society of Professional Engineers, Structural Engineers Council, and National Academy of Forensic Engineers. He also serves as a subject-matter expert for the Florida Construction Industry Licensing Board, and he helps prepare and evaluate contractor licensing examinations. Respondent is also a licensed general contractor.

3. This case involves engineering drawings that Respondent prepared for a residential project known as the Sorrentino Residence. The Sorrentino Residence is located in Hillsborough County. The drawings, which are signed and sealed by Respondent, represent that the design portrayed by the drawings is “in accordance” with the SBCCI Standard Building Code, 1994 Edition[, and t]he wind design was conducted using a 110 MPH wind speed.”

4. Prior to the Sorrentino Residence, Respondent had been the engineer of residence for over 20 projects. About 10

   of these projects had been wood-frame homes, such as the home designed and constructed as the Sorrentino Residence.

5. The owner of the Sorrentino Residence purchased plans from Amerilink. A mechanical/electrical engineering firm, Parker-Stevens, obtained the consent of Amerilink to alter these plans for the Sorrentino Residence. One of the changes increased the thickness of the second floor, which raised the overall building height by 12 inches.

6. Respondent became involved with the Sorrentino Residence when one of the principals of Parker-Stevens contacted him and asked if he would work on the project. The structural engineer who had started to work on the project had moved out of Florida prior to obtaining any permits. Respondent agreed to accept the assignment.

7. Respondent worked on the drawings, as well as on other assignments, for six weeks. He required about 60 hours to perform all of the necessary calculations. Because of poor soil conditions at the lakefront lot at which the Sorrentino Residence was to be built, Respondent had to substitute pilings for a masonry stemwall. To preclude differential settlement of pilings, Respondent performed the calculations necessary to place the pilings so that each was within 10 percent of the others’ axial load. Respondent also performed calculations for numerous other purposes, including designing

   the beams, floor diaphragm, second-floor bearing wall, exterior walls, and structural ability to withstand wind loads.

8. At the time that he began to work on the Sorrentino Residence drawings, Respondent was still a partner with Architectural Services and Engineering. In July 1997, two weeks after Respondent had sealed the drawings, Respondent became dissatisfied with the business practices of his partner, who was not an engineer, contractor, or architect, and left Architectural Services and Engineering. Construction on the Sorrentino Residence started about six weeks later.

9. When Respondent left Architectural Services and Engineering, he was the sole qualifier for the company, which did not obtain another qualifier for eight months. Following Respondent’s departure from Architectural Services and Engineering, the owner of the Sorrentino Residence contacted Respondent to discuss the drawings. Because the contract was between the owner and Architectural Services and Engineering, Respondent’s former partner objected to any communication between Respondent and the owner and, among other things, made the complaint that led to the commencement of this disciplinary proceeding. At this point, Respondent chose not to have further contact with the owner or construction of the residence.

10. Count One alleges that Respondent’s drawings are deficient because they fail to specify the necessary supplemental framing in the exterior walls of the living room and kitchen.

11. Petitioner has failed to prove by clear and convincing evidence that Respondent’s omission of the supplemental framing constitutes negligence in the practice of engineering.

12. First, not surprisingly, common field practice has addressed the recurring phenomenon of openings in exterior walls. After cutting studs for an opening, all contractors add headers, jack studs, and full-length studs on each side of the opening. The omission from drawings of an element readily supplied by common field practice is not negligent.

13. The Hillsborough Building Department expects drawings to depict supplemental framing, at least if such detail is necessary to construct the building that is the subject of the drawings. This expectation does not establish negligence in this case for two reasons. First, as noted in the preceding paragraph, common field practice obviates the necessity of the depiction of the supplemental framing around openings in exterior walls; thus, such detail is unnecessary to construct the building. Second, the Hillsborough Building Department frequently rejects drawings and plans; thus, a

    departure from its requirements is not necessarily negligence, at least absent a showing that negligence in engineering is common in Hillsborough County.

14. Additionally, neither the Standard Building Code nor applicable rules specify the minimum contents of drawings. Interestingly, several years ago, the Hillsborough County Building Department eliminated its minimum requirements for drawings. These facts suggest that categoric minimum requirements for drawings must yield to a case-by-case approach that can better address the myriad of circumstances that accompany each design project, including the complexity of the subject structure, the significance of the item omitted from the drawings, and the likelihood that custom or practice will supply the information missing from the drawings.

15. The preceding paragraphs sufficiently address the issue raised by Count One. However, both parties have addressed other issues. Given the resolution of these issues, it is unnecessary to consider whether they have been adequately pleaded.

16. Sheet A-6 of the drawings contains details for a “typical wall section” and “typical shear wall.” The “typical wall section” clearly depicts exterior walls and specifies, for such walls, 2-inch by 4-inch studs spaced 16 inches on center. Sheet A-4 depicts exterior walls as 3 1/2 inches

    thick, which is consistent with exterior framing of 2-inch by 4-inch lumber, rather than 2-inch by 6-inch or 2-inch by 8- inch lumber.

17. However, General Note 4.4.1 on Sheet A-1 specifies that the exterior framing shall be 2-inch by 6-inch and 2-inch by 8-inch. The only 2-inch by 4-inch lumber is reserved for interior framing.

18. The drawings are inconsistent as to the specification of exterior framing. The inconsistency is obvious and caused the owner to contact Respondent after delivery of the drawings and confirm that he intended the use of 2-inch by 6-inch or 2-inch by 8-inch exterior framing.

19. However, Petitioner has failed to establish that this internal inconsistency in the drawings constitutes negligence. It is not negligence merely because drawings are flawed, even if the flaw requires a contractor or owner to request clarification from an engineer.

20. The flaw in specifying the exterior framing studs is not negligent for two reasons. First, the obvious inconsistency in the drawings, which caused even the owner to contact Respondent, left little chance that a contractor would fail to notice the conflicting specifications. Noticing the conflict, the contractor would either build to the more conservative specifications, which would be the stronger

    exterior framing studs, or contact the engineer for clarification.

21. Second, the record amply demonstrates that informed engineers differ as to the materiality of the specification that the exterior framing studs be greater than 2-inch by 4- inch. Absent clear and convincing evidence that the structural integrity of the building would have been affected, in terms of its ability to support design wind loads, the flaw in specifying the exterior framing studs does not rise to negligence.

22. Count Three alleges that Respondent’s drawings are deficient because they fail to specify the sheathing thickness and nailing of the floor and roof diaphragms.

23. Petitioner has failed to prove by clear and convincing evidence that Respondent’s omission of the sheathing thickness and nailing of the floor and roof diaphragms constitutes negligence in the practice of engineering.

24. Again, neither the Standard Building Code nor the rules require the depiction of a diaphragm or a specification of its thickness or nailing patterns. The practice of the Hillsborough County Building Department is to require the depiction of the diaphragm if the drawings deviate from the

    sheathing orientation or nailing pattern specified in the Standard Building Code.

25. Depicting the first floor framing plan, Sheet A-3 specifies 1/2-inch plywood subflooring. As noted by Respondent’s expert, 1/2-inch plywood subflooring would sag, although not collapse; 3/4-inch plywood subflooring is needed, given the 24-inch spacing of the floor trusses. Again, the owner, evidently concerned about this detail, contacted Respondent after delivery of the drawings, and Respondent told the owner to use 3/4-inch plywood.

26. However, nothing in the Administrative Complaint alleges negligence in the misspecification of the plywood subflooring. Count Three alleges only that the drawings negligently omit specifications concerning the floor and roof diaphragm, which would include the plywood subflooring. Specifying the wrong item is not failing to specify an item. Proof concerning the erroneous specification of 1/2-inch plywood subflooring is therefore outside the scope of the pleadings and irrelevant.

27. Count Four alleges that Respondent’s drawings are deficient because they include gable trusses even though the house was not to be constructed with gable trusses.

28. Petitioner has failed to prove by clear and convincing evidence that the depiction of gable trusses constitutes negligence in the practice of engineering.

29. Respondent explained that he simply provided the truss engineer with an alternative roof design, in case the need for an alternative arose. Respondent’s explanation was implausible. It was also imprudent, as evidenced from pages 12-14 of Petitioner’s proposed recommended order.

30. The inclusion of the gable trusses was a simple, but harmless, mistake on Respondent’s part. Although sloppy, the inclusion of gable trusses in the drawings could not possibly have misled the truss engineer, to whom Respondent had properly delegated the responsibility for designing the roof, into designing the wrong roof for the Sorrentino Residence, nor could it have misled the contractor into building the wrong roof for the Sorrentino Residence.

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

32. Section 471.038(3) authorizes Petitioner to provide administrative, investigative, and prosecutorial services to the Board of Professional Engineers.

33. Section 471.033(1)(g) authorizes the Board of Professional Engineers to impose discipline for negligence in the practice of engineering.

34. Rule 61G15-19.001(4) defines “negligence” as “the failure by a professional engineer to utilize due care in performing in an engineering capacity or failing to have due regard for acceptable standards of engineering principles.”

35. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

36. For the reasons set forth in the findings of fact, Petitioner has failed to prove the material allegations by clear and convincing evidence.

RECOMMENDATION

It is

RECOMMENDED that the Board of Professional Engineers enter a final order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 30th day of March, 2001, in Tallahassee, Leon County, Florida.

___________________________________ ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2001.

COPIES FURNISHED:

Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and

Professional Regulation 1208 Hays Street

Tallahassee, Florida 32301

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation

Northwood Centre, 1940 North Monroe Street Tallahassee, Florida 32399-0792

Doug Sunshine, Esquire

V.P. for Legal Affairs

Florida Engineers Management Corporation 1208 Hays Street

Brent Wadsworth

Post Office Box 270118 Tampa, Florida 33688

David P. Rankin

3837 Northdale Boulevard

Suite 332

Tampa, Florida 33624

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-002833PL

Orders for Case No: 00-002833PL