STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT CORPORATION,

Petitioner,

vs.

JAMES C. TIPPENS, P.E.,

Respondent.

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) Case No. 04-3197PL

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RECOMMENDED ORDER

A formal hearing was conducted before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings, on January 14, 2005, in Clearwater, Florida.

APPEARANCES

For Petitioner: Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32307-5267

For Respondent: Jawder I. Rubaii, Esquire

1358 South Missouri Avenue Clearwater, Florida 33756

STATEMENT OF THE ISSUE

Whether Respondent was negligent in the practice of engineering as a result of alleged deficiencies in a porch addition to a residential structure, as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

By Administrative Complaint dated June 4, 2004, the Florida Engineers Management Corporation (Petitioner), notified James C. Tippens (Respondent) that it intended to take disciplinary action pursuant to Chapters 455 and 471, Florida Statutes (2004), against his professional engineer's license. Respondent timely requested a formal hearing on July 2, 2004, and the matter was forwarded to the Division of Administrative Hearings on September 9, 2004, for assignment of an Administrative Law Judge and discovery ensued. This matter was continued once at the request of Petitioner. Prior to the commencement of the hearing, Petitioner moved to amend paragraph 5.c. of the Administrative Complaint due to a scrivener's error and, without objection, the reference to the "24 plf" was amended to "34 plf."

At hearing, Petitioner presented the testimony of one expert witness: Santiago Aranegui, P.E. In addition, Petitioner moved six exhibits into evidence, all of which were admitted. Petitioner also presented four demonstrative exhibits for identification. Respondent testified on his own behalf and presented the testimony of one expert witness: Arnold E. Somers, Jr., P.E., Ph.D. Respondent moved one exhibit into evidence, which was admitted. Pursuant to the Administrative Law Judge's request, a copy of Table 1606.2A from the Florida

Building Code (FBC) entitled, "Main Wind Force Resisting System Windloads for Building with Mean High Roof Height of 30 Feet Located in Exposure B" and Table 1606.2B of the FBC entitled, "Component and Cladding Windloads for Building with Mean Roof Heights of 30 Feet Located in Exposure B," was admitted in evidence.

At the conclusion of the evidentiary portion of the hearing, the parties were advised of their right to file proposed recommended orders. A deadline was established at ten days from the date of the filing of the transcript of the hearing for the filing of post-hearing submittals.

The hearing Transcript, consisting of one volume, was filed on March 7, 2005. On March 16, 2005, Petitioner filed a motion for extension of time to file a proposed recommended order. By Order dated March 17, 2005, over Respondent's objection, Petitioner's motion for extension was granted. Petitioner was directed to file its proposed recommended orders no later than April 4, 2005. Petitioner timely filed its Proposed Recommended Order. Respondent filed his Proposed Order on March 15, 2005.

Both parties' proposals have been given careful consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon the evidence, the following Findings of Fact are made:

1. Petitioner is charged with regulating the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes (2004).

2. Respondent is, and has been at all times material to this matter, a licensed professional engineer in the State of Florida, having been issued License No. PE 12217.

3. Pursuant to the terms of a stipulation entered into between Respondent and the Board of Professional Engineers (Board) on a prior matter, Respondent provided the Board with a list of all Respondent's projects completed at 6- and 18-month intervals. One of these projects was a Terks Contracting Construction, Inc. (Terks Contracting), project for a screened porch addition. Respondent testified he was retained for the purpose of producing drawings containing specifications for the contractor for the slab, supports, spanning members, the connectors, and other elements.

4. Respondent is the engineer of record for the Terks Contracting's covered porch addition to an existing single- family house.

5. Respondent analyzed the windloads for the wood joists, wood beam, and the uplift supports. He calculated not only the gravity load, but considered the uplift load, as well.

6. The analysis of windloads are covered by Tables 1606.2A and 1606.2B of the FBC. Petitioner testified he used these

   tables in his design of the covered porch. These tables are a simplified version of the standards of the American Society of Civil Engineers, Chapter 7-98 (ASCE 7).

7. Respondent's determination of the components and cladding wind pressure are not inconsistent with the standards of the ASCE 7, which is the windload provision of the FBC.

8. Respondent's calculations state that the rafters experience a uniform uplift load of 34 pounds per linear foot (plf) for the interior zones, and 38.4 pounds per square foot (psf) and 30.1 psf, respectively, for the endzones.

9. Respondent is not mistaken in treating the overhang area and the endzones as two different areas adjacent to each other. To the extent the endzone (or edge zone) has higher wind pressures, Respondent calculated that the new structure would not adversely affect the existing house, if the new joists were attached to the top plate of the existing house.

10. Respondent's calculations and drawings do not adversely affect how the covered porch addition affects the existing structure. Respondent's plan calls for the new joists to be connected to the top plate, which is part of the wall of the existing house, using a Simpson H 2.5 connector and to be set along side the existing truss members. The new joists were not attached to the existing trusses. In addition, a nailing pattern was selected for the plywood sheathing panels that

    accounted for variable wind pressures using the higher endzone windload for the entire area.

11. However, Aranegui testified that he did not make any calculations to determine if, in fact, the specifications in the drawings were inadequate or incorrect. Petitioner's witness testified that he did not inspect the structure or speak with Respondent regarding the design of the structure. Aranegui did not take issue with Respondent's specifications for components or materials for the structure. Petitioner presented no evidence that there had been any complaints about the integrity of the structure, that the structure was deficient or unsafe in any manner, or that the structural elements as shown on the plans and, as built, did not meet engineering or FBC requirements.

12. Aranegui testified that his opinions were based solely on two documents: the plans for the additions, Petitioner's Exhibit 1; and Respondent's calculations, Petitioner's

    Exhibit 2. Petitioner's expert witness testified that his concern came from his review of the paper calculations done by Respondent, and he believed the calculation sheet (not the plans) did not show consideration of windloads or complete analysis.

13. However, Aranequi did not identify any requirement that these calculations be shown on paper and not just on the

    plans, nor did he identify any engineering practice imposing a duty on Respondent to write these calculations down. As noted below, there is convincing evidence that these concerns were considered and addressed by Respondent in the plans.

14. Aranegui testified that his concern arose from his belief that the entire project in question should have been treated as a large overhang. However, Aranegui did not identify any provisions of the building code requiring Respondent to treat the screen porch addition as an overhang and did not identify any specific engineering practice that imposed a duty on Respondent to approach the design of the project as a large overhang. Aranegui's opinions were based on the assumption that because the plans and the calculation sheet he reviewed did not, in his opinion, show that certain matters were considered, they were not, in fact, considered in the design of the structure. Aranegui also testified he did not find an actual error or miscalculation in Petitioner's Exhibit 2.

15. The evidence is convincing that the design of the porch addition was sound and safe and met all required structural requirements.

16. The evidence is not clear and convincing that Respondent was negligent in the practice of engineering in a porch addition to a residential structure.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2004).

18. Petitioner is a Florida not-for-profit corporation created by the Legislature "to provide administrative, investigative, and prosecutorial services" to the Board. It is authorized to bring this action against Respondent pursuant to Section 471.038, Florida Statutes (2004).

19. Respondent, as a licensed professional engineer in the State of Florida, is subject to discipline by the Board.

    § 471.033, Fla. Stat. (2004).

    
    

20. Pursuant to Subsection 471.033(3), Florida Statutes (2004), the Board is empowered to revoke, suspend, or otherwise discipline the license of a professional engineer for violations of Subsection 47.033(1)(g), Florida Statutes (2004).

21. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission,

    281 So. 2d 487 (Fla. 1973). In this disciplinary licensing proceeding, Petitioner must prove the alleged violations of Subsection 471.033(1)(g), Florida Statutes (2004), by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

22. Subsection 471.033(1)(g), Florida Statutes (2004), provides in pertinent part:

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

       
       

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       (g) Engaging in fraud or deceit, negligence, incompetence, or misconduct, in the practice of engineering.

       
       

23. The Board 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. 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." Fla. Admin. Code R. 61G15-19.001(4).

24. Where the licensee is charged with a violation of professional conduct and the specific acts of conduct required of the professional are explicitly set forth in the statute or valid rule promulgated pursuant thereto, the burden on the agency is to show a deviation from the statutory required acts; but where the agency charges negligent violation of general standards of professional conduct, i.e., the negligent failure to exercise the degree of care reasonably expected of a professional, the agency must present expert testimony that

    proves the required professional conduct, as well as the deviation therefore. See Purvis v. Department of Professional

    Regulation, 461 So. 2d 134 (Fla. 1st DCA 1984).

    
    

25. With respect to the allegation of paragraph 5(a) of the Administrative Complaint, Petitioner did not produce any evidence of a legal requirement that the plans or the written calculations done for the plans treat the structure as an overhang or specifically show higher windloads. Moreover, Respondent testified he did consider the windloads for the structure using Tables 1606.2A and 1606.2B.

26. With respect to paragraph 5(b), Petitioner failed to produce sufficient evidence of any legal requirement that Respondent use the area of the 4x8 plywood panel to determine wind pressure. Aranegui testified that Respondent used a "conservative" approach to the design. Respondent analyzed the load for the area with the highest load and used this number for the entire area.

27. With respect to paragraphs 5(c) and 5(d), these related allegations depend on Petitioner's expert witness' opinion that the structure be treated as an overhang for purposes of approaching the design. Again, Petitioner did not testify to any legal requirement or duty imposed on Respondent to use this approach.

28. With respect to paragraph 5(e), the plans clearly show Respondent considered the effect on the existing structure by his selection of the appropriate Simpson connector.

29. In this case, Petitioner presented no evidence of any deficiencies in Respondent's plans. Indeed, Petitioner's expert witness specifically stated he did not make any calculations to allow him to determine if the actual plans or the actual structure was deficient. Petitioner's theory in this case rests on an opinion that the structure should be treated as an overhang. Yet, there was no legal requirement proven by Petitioner establishing this as the only approach to the design. See Florida Engineers Management Corporation v. Stanley Newton, Case No. 02-2536PL (DOAH December 20, 2002). Aranegui's other opinion related to the connection between the new structure and the old was based on the incorrect assumption that the joists of the screen porch addition were connected to the trusses of the existing structure. In fact, as shown on the plans, the new joists were connected by a Simpson H 2.5 connector to the top plate of the wall of the existing structure. The opinion was based on an incorrect assumption and is insufficient to prove negligence.

30. Petitioner failed to establish by clear and convincing evidence that Respondent engaged in negligence in the practice of engineering, to the extent the evidence adduced at hearing

    failed to establish clearly and convincingly that Respondent's drawings and calculations evince a misunderstanding of the requirements of the standards of ASCE 7; a misunderstanding of how to calculate the uplift pressures for endzones; a mistaken treatment for determining the components and cladding wind pressures; or a misunderstanding and treatment of overhangs.

    Respondent did not fail to re-analyze the wood joists, the wood beam, and the uplift supports for the applicable higher loads; and his calculations did provide for how the new covered patio would affect the existing structure.

31. Consequently, Respondent's conduct does not constitute a violation of Subsection 471.033(1)(g), Florida Statutes (2004).

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the Board of Professional Engineers enter a final order finding Respondent, James Tippens, P.E., not guilty of negligence in the practice of engineering as alleged and that the Administrative Complaint filed in this cause be dismissed.

DONE AND ENTERED this 5th day of May, 2005, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 5th day of May, 2005.

COPIES FURNISHED:

Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Jawdett I. Rubaii, Esquire 1358 South Missouri Avenue Clearwater, Florida 33756

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

Professional Regulation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Leon Biegalski, 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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-003197PL

Orders for Case No: 04-003197PL