STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT CORPORATION,

Petitioner,

vs.

SHIELDS E. CLARK, P.E.,

Respondent.

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) Case Nos. 01-2290PL

) 01-2396PL

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly-designated Administrative Law Judge, Fred L. Buckine, held a formal hearing in the above-styled cases on August 29, 2001, by video teleconference in Tampa, Miami, and Tallahassee, Florida.

APPEARANCES

For Petitioner: Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation

2507 Callaway Road

Suite 200

Tallahassee, Florida 32303-5267

For Respondent: Brian A. Burden, Esquire

Post Office Box 767

Tampa, Florida 33601-0767 STATEMENT OF THE ISSUES

The issues for disposition in this proceeding are whether, as alleged in the Administrative Complaints dated

December 15, 2000, and April 3, 2001, Respondent committed negligence in the practice of structural engineering, and if those allegations occurred in violation of Section 471.033(1)(g), Florida Statutes, what appropriate penalty should be recommended.

PRELIMINARY STATEMENT

The Florida Engineers Management Corporation (FEMC) by Administrative Complaints, Case No. 00-0038 dated December 15, 2000, and Case No. 00-0108 dated April 3, 2001, notified Respondent, Shields E. Clark, P.E., that it intended to take disciplinary action pursuant to Chapters 455 and 471, Florida Statutes, against his professional license.

Clark filed timely requests for a formal hearing. The complaints were then forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge and the scheduling of a formal hearing. DOAH Case No. 01-2290PL was assigned to FEMC Case No. 00-0108 and DOAH Case No. 01-2396PL was assigned to FEMC Case No. 00-0038. By Order dated June 18, 2001, the cases were consolidated.

It is alleged in three counts, DOAH Case No. 01-2290PL, that Respondent signed and sealed two sheets of structural plans for alterations to a residence located at 2706 Bayside Drive, Clearwater, Florida, owned by Mr. and Mrs. Miller. The plans

allegedly contained engineering deficiencies and lacked detailed information. Clark disputed paragraphs 7-16 of this complaint.

It is alleged in two counts, DOAH Case No. 01-2396PL, that Respondent signed and sealed three sheets of structural plans for construction additions to a residence located at 397 Leeward Drive, Clearwater, Florida. The plans allegedly contained deficiencies not in compliance with the practice of engineering. Clark disputed paragraphs 3-5 and 9-15 of this complaint.

Petitioner dismissed Count II of this complaint, which dealt with a violation of Section 471.025, Florida Statutes.

At the hearings, Petitioner presented three witnesses: James Power, its engineering expert; Tom Chaplinsky, Clearwater's Plans Reviewer; and Phillip Matonte, P.E. FEMC, also filed a complaint against Matonte arising from the same factual circumstances involving Respondent, Clark. Matonte is owner of William Michael & Associates, Inc., which owns residential properties at 397 Leeward Drive, Clearwater, Florida, and 1875 Allendale Drive, Seminole, Florida.

Petitioner had Exhibits 1-5 received into evidence. Respondent testified in his own behalf and offered no exhibits into evidence.

On September 13, 2001, the Transcript of the hearing was filed. Petitioner and Respondent filed their Proposed

Recommended Orders, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record complied herein, the following relevant facts are found.

1. At all times material hereto, Petitioner, Florida Engineers Management Corporation, was the state agency responsible for regulating the practice of engineering in this state.

2. At all times material hereto, Respondent, Shields E. Clark, P.E., was licensed as a professional engineer in the State of Florida having been issued license No. 6826 in 1958.

   In the 43 years Clark has been licensed as a professional engineer, this proceeding is the only allegation of professional wrongdoing of disciplinary action taken against him.

3. Philip Matonte is a self-employed builder/property manager and owner of William Michael & Associates, Inc. This business entity is owner of two residential properties. One property is located at 397 Leeward Drive, Clearwater, Florida, and the other property is located in Seminole, Florida.

   DOAH Case No. 01-2290PL - 276 Bayside Drive, Clearwater, Florida.

   
   

4. Respondent was the engineer of record as reflected by his signature on two sheets of plans for proposed structural additions to the residential property owned by Mr. and Mrs. Miller. Both sheets, date stamped June 26, 2000, had the logo DCI, Design and Consultant's, Inc., Drafting Services.

   R. Brazil drew the plans and Respondent signed and sealed both sheets.

5. On or about August 4, 2000, the above-referred two sheets of proposed structural additions to the Millers' residence were submitted to the City of Clearwater for a building permit and were rejected by the City. The basis for the reviewers' rejection were: plans were vague and missing considerable details pertaining to existing beams and were missing information pertaining to the foundation, load paths for additional weight, and anchoring for the foundational structure.

6. Petitioner's expert, John Power, opined that the above drawings failed to provide sufficient information to indicate the nature of the existing construction or sufficient detail to permit an evaluation of what effect the new construction would have on the existing structure. According to Power, he could not determine whether the carport had a roof; whether the carport had walls; if so, the wall section was not provided;

   whether the roof would have to be removed to accommodate the additional construction; whether there was a beam or wall at the back of the carport; and no details provided for the double 2 by

   12 beam at the rear of the proposed addition to the existing structure.

7. Power opined that Respondent failed to provide necessary notes and specifications in the drawings. First, he failed to specify the concrete strength for the new pilaster at the rear of the building and failed to specify the reinforcement steel grade. Second, he failed to specify the required concrete steel ties and failed to indicate the framing of the proposed skylight. Respondent's explanation that he provided xeroxed copies of specific code sections pertaining to each changed section of the plans with instructions to the person drafting the plans to include the code section requirements provided is evasive.

8. Power further opined that Respondent failed to provide necessary notes and specifications in his drawings. He failed to specify the reinforcement steel grade; failed to specify the required concrete steel ties; failed to indicate the framing of the proposed skylight; and failed to specify the grade and species of lumber, that should have been specified, for the rafters. Power reasoned that it is unlikely a builder would use anything of a higher-grade No. 1 Southern Pine lumber. Even so,

   grade No. 1 Southern Pine would have been inadequate and overstressed, given the proposed structural additions and the double 2 by 12 members forming the beam at the rear of the building.

9. Respondent's drawings calling for an 8 by 16 concrete beam in the front of the building was deficient because the beam is overstressed in shear and lacks the required stirrups for attachment. Further, there are no details as to how the platforms cantilevered from the exterior walls in Section F3 of the drawings are to be supported.

10. Included on the blueprint drawings, dated June 26, 2000, was the statement: "This structure has been designed to resist uplift pressures generated by a 102-MPH wind," with the number 102 crossed out and the number "130" written underneath. From this change, Power opined that Respondent's method of calculation for basic wind speed was not clarified nor indicated on the drawings. The wind speed calculations and the added weight of the proposed structural construction form the basis for determining the stress imposed upon the existing structure.

11. Power and Respondent agree that there are two acceptable methods for calculating and determining wind speed. The 1997 Standard Building Code ASCE 7-95 determines a basic wind speed from anticipated three-second gusts. Conversely, the Standard Building Code 1606.2 determines a basic wind speed from

    anticipated fastest mph wind velocity within a given time period 10, 15, 20, 30 or 50 years. According to Respondent, had Power based his computation upon Standard Building Code 1606.2 standard of the fastest wind in a given yearly cycle instead of the anticipated three-second gusts, he could not conclude the supporting beams were overstressed. Respondent's use of the 1606.2 standard, though calculations are not shown in the plans, is an acceptable engineering practice.

    DOAH Case No. 01-2396PL - 397 Leeward Drive, Clearwater, Florida.

    
    

12. According to Matonte, after the City of Clearwater recommended Respondent to him as an engineer who had provided acceptable plans in the past, he met with Respondent several times to discuss hiring him for a project on his home at

    397 Leeward Drive, Clearwater, Florida. According to Tom Chaplinsky, City's Plan Reviewer, no one from the City recommended Respondent to Matonte. I find Chaplinsky's testimony credible.

13. According to Respondent, he met and discussed with Matonte the drafting of a steel beam to support additions to a swimming pool on a property located in Seminole, Florida, not in Clearwater, Florida. Matonte drove Respondent to the Seminole property and Respondent completed, as requested, a survey and

    the property and drew the steel beam, charging Matonte $150.00 for the single sheet drawing.

14. Matonte's testimony on the above points is not credible. First, the City of Clearwater did not refer Respondent to him for professional engineering services. Second, a company, not Matonte, owns the residence at

    397 Leeward Drive, Clearwater, Florida. Third, Matonte's company, William Michael & Associates, Inc., does own residential property in Seminole, Florida.

15. The three sheets of plans for the 397 Leeward Drive property contain the signature and seal of the Respondent. However, Matonte drew 26 sheets of plans that he signed and sealed in the presence of Tom Chaplinsky and from which the City filed a complaint against him for signing and sealing as a professional engineer when he was not so authorized. The record does not reflect the specific sheets of plans Matonte presented to the City which were subsequently reviewed and rejected by Olson, another reviewer. Respondent takes the position that he did not sign and seal plans for a Clearwater property. His explanation is that "someone else, probably Matonte, using his seal, signed and sealed blank sheets during one of the several visits to his office and later cut and paste structural drawing on those sheets". I find Respondent did sign and seal the three sheets of plans at issue.

16. Power, in his review of those three sheets of plans, opined that those plans did not contain details to explain Respondent's use of the "130-MPH" wind uplift resistance. From this basic premise, Power's opinion on this issue is the same as found in paragraph No. 11 herein above. Power's conclusions, however, are slightly different from his conclusions on the

    276 Bayside Drive, Clearwater, Florida, property. Here he concludes that were a builder to rely solely on the drawings, the resulting construction would constitute a threat to life and [public] safety.

17. At first blush, it would appear Petitioner's above allegation has substance. Taken as a whole, in the opinion of Power, once he decided the 130-MPH wind resistance notation was made over the crossed-out 102-MPH notation, finding deficiencies was a matter of review when using computation based upon anticipated three-second gusts. To this proposition, Respondent correctly contended that if Power used the 130-MPH wind resistance computation based upon fastest wind velocity over a period of years, his results would show the structure to be sufficient. Upon consideration of the fact that both Respondent and Power each have over 40 years engineering experience; that Respondent has worked almost exclusively on one/two story dwelling in Pinellas County for the past 10 to 15 years using the 1606.2, Standard Building Code, for the 130-MPH computation

    without complaint, compared to Power's most recent engineering practice has been primarily that of an expert witness; Power's testimony on this point is less than convincing.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearing has jurisdiction over the subject matter and parties to this proceeding. Section 102.57(1), Florida Statutes.

19. Petitioner, Florida Engineers Management Corporation, a Florida not for-profit corporation, created pursuant to Section 471.038, Florida Statutes, "to provide administrative, investigative, and prosecutorial services," is authorized to bring this action against Respondent.

20. Respondent is a licensed professional engineer in the State of Florida and subject to discipline by the Florida Board of Professional Engineers.

21. Pursuant to Section 471.033(3), Florida Statutes, the Board of Professional Engineers is empowered to revoke, suspend, or otherwise discipline the license of a professional engineer for violation of Section 471.033(1)(g), Florida Statutes, for negligence in the practice of engineering.

22. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973).

23. In disciplinary licensing proceeding, Petitioner must prove the allegations made in the complaint are in violation of Section 471.033(1)(g), Florida Statutes, by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern & Company, 670 So. 2d 932 (Fla. 1996).

24. Section 471.033(1)(g), Florida Statutes, in pertinent part, provides that:

    1. The following acts constitute grounds for which the disciplinary actions in subsection

       (3) may be taken:

       
       

       * * *

       
       

       (g) Engaging in . . . negligence . . . in the practice of engineering.

       
       

25. "Negligence" is defined in Rule 61G15-19.001(4), Florida Administrative Code, 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." The rule further provides: "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."

26. Petitioner seeks to discipline Respondent's license as a professional engineer in this state alleging that he is guilty

    of several violations of the provisions of Section 471.033(1)(g), Florida Statutes.

27. In Count I of DOAH Case No. 01-2290PL, Petitioner alleged Respondent failed to adequately describe on his drawings necessary, sufficient, and professional details to permit a reasonable evaluation of the effects of the proposed structural additions to an existing structure and to adequately define the proposed construction on his initial construction plans prepared for property at 397 Leeward Drive, Clearwater, Florida.

28. Count II alleged that Respondent's revised plans were also lacking in the same or similar detailed information. Petitioner's expert, John Power, a professional engineer with over 35 years' experience, concluded that Respondent's engineering drawings lacked standard "detailed" information which is required of every professional engineer who signs and seals construction plans. Acceptable standards require, at a minimum, signed and sealed construction plans to contain sufficient, detailed information to enable a user/reviewer or builder and/or another engineer, to answer questions concerning proposed construction based on those plans. Respondent did not provide detailed and essential information on his initial plans or on his revised plans.

29. Petitioner has proven, by clear and convincing evidence, those allegations contained in Count I and Count II of

    DOAH Case No. 01-2290PL with regard to property located at Leeward Drive, Clearwater, Florida. Respondent failed to utilize due care and to have due regard for acceptable standards of engineering principles in performing in an engineering capacity and signed and sealed documents that did not conform to acceptable engineering standards and safeguard the life, health, property, and welfare of the public.

30. In Count III, Petitioner alleged that Respondent's 130-MPH wind calculation method without clarification of what method was used on the plans was negligence in the practice of engineering in violation of Section 471.033(1)(g), Florida Statutes. On this issue, both Petitioner's expert and Respondent agree that two separate wind speed standards and methods of calculating wind speed are acceptable. They disagree, however, on whether the "calculations used to measure wind speed need be written on the face of the plans." Petitioner's expert provided no support for his position, either by citing a rule or professional standard that required the method of calculations used by the engineer of record be written on the face of the engineering's plans. Petitioner has not shown that Respondent's election to use 130-MPH wind resistance, instead of the 102-MPH wind resistance or the method of calculation to be inappropriate. Respondent's failure to write

    calculation notations on the face of plans has not been shown to be an act of negligence.

31. Accordingly, Respondent has not committed negligence in the practice of engineering as defined by Rule 61G15- 19.001(4), Florida Administrative Code, and did not violate Section 471.033(1)(g), Florida Statutes, as alleged in Count III of this complaint.

32. In DOAH Case No. 01-2396PL, 397 Leeward Drive, Clearwater, Florida, Petitioner alleged the Respondent's notation, "this structure has been designed to resist uplift pressures generated by a 130-MPH wind" followed by certification that a "windload review of these plans has been made by

    Shields E. Clark, P.E. and it is certified to be in compliance with Section 1606 of the Standard Building Code 1994" was not justified. Petitioner alleged the lack of detailed information in the plans evidenced a failure to exercise due care in performing in an engineering capacity.

33. Though stated differently, the factual basis and proffered proof in support of the Count I allegation, lack of information to support the 102-MPH verses 130-MPH notation, are identical to that in Count III of DOAH Case No. 01-2290PL. Here, as in Count III of DOAH Case No. 01-2290, Respondent and Petitioner's expert agree that there are two Building Code Standards for wind speed resistance. As found that case, the

    parties disagree on whether the 130-MPH calculation method selected by Respondent required computation notation be written on the plans. Respondent's failure to write calculation notations on the face of plans he signed and sealed is not an act of negligence as defined by Rule 61G15-19.001(4), Florida Administrative Code.

34. Accordingly, Respondent has not engaged in negligence in the practice of engineering as defined by Rule 61G15- 19.001(4), Florida Administrative Code, and is not in violation of Section 471.033(1)(g), Florida Statutes, as alleged in

    Count I of this complaint.

    
    

35. Petitioner offered no proof of cost relating to investigation and prosecution of these two complaints, pursuant to Section 455.227(3)(a), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that a Final Order be entered finding that Respondent, Shields B. Clark, is guilty of negligence in the practice of engineering and violated Section 471.033(1)(g), Florida Statutes, as set forth in Counts I and II in DOAH Case No. 01-2290PL, finding that Shields E. Clark is not in violation of Section 471.033(1)(g) as set forth in Count III of DOAH Case

No. 01-2290PL and Count I of DOAH Case No. 01-2396PL, and dismissing Count II of DOAH Case No. 01-2396PL.

Further, giving Shields B. Clark a written reprimand, placing him on probation for two years under such terms and conditions as the Board deem appropriate, imposing a fine of

$2,000.00 and assess no cost related to the investigation and prosecution of theses cases.

DONE AND ENTERED this 19th day of December, 2001, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

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 19th day of December, 2001.

COPIES FURNISHED:

Brian A. Burden, Esquire Post Office Box 767 Tampa, Florida 33601-0767

Natalie A. Lowe, Executive Director Board of Professional Engineers

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

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

Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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: 01-002396PL

Orders for Case No: 01-002396PL