STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT CORPORATION,

Petitioner,

vs.

JULIAN B. IRBY, P.E., AND IRBY ENGINEERING AND CONSTRUCTION, INC.,

Respondents.

)

)

)

)

)

) Case No. 06-1871PL

)

)

)

)

)

)

)

RECOMMENDED ORDER

On July 31, 2006, a video-teleconference hearing was held in Pensacola and Tallahassee, Florida, pursuant to Sections

120.569 and 120.57(1), Florida Statutes. The case was considered by Lisa Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Bruce A. Campbell, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

For Respondents: A. G. Condon, Jr., Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street Post Office Drawer 1271 Pensacola, Florida 32502

STATEMENT OF THE ISSUE

The issue presented is whether Respondents are guilty of

violating Section 471.033(1)(g), Florida Statutes, and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On April 20, 2006, Petitioner filed an Administrative Complaint alleging that Respondents Julian Irby, P.E., and Irby Engineering and Construction, Inc., violated Section 471.033(1)(g), Florida Statutes. Respondents filed Answers and Affirmative Defenses as well as an Election of Rights requesting a hearing pursuant to Section 120.57(1), Florida Statutes. On May 18, 2006, the matter was forwarded to the Division of Administrative Hearings for the assignment of an administrative law judge.

The case was originally scheduled for hearing July 14-15, 2006 before Judge Charles Adams. Upon the Joint Request for Continuance filed by the parties, it was rescheduled for July 31, 2006. The case was subsequently reassigned to the undersigned prior to hearing.

At hearing, Petitioner presented one witness and Petitioner's Exhibits 1 through 3 were received into evidence. Petitioner was given until August 10, 2006 to file the deposition of Roland Holt, P.E. Respondent Irby testified on his own behalf and presented the testimony of Mark Spitznagel, P.E., and Respondents' Exhibits numbered 2-5, 16-17, and 19-21

were admitted into evidence. The parties stipulated to certain findings of fact that are incorporated into the findings below.

A hearing transcript was prepared and filed with the Division August 8, 2006. The deposition of Roland Holt was filed with the Division August 11, 2006 without objection. The parties were granted until August 21, 2006, to file proposed recommended orders. Both parties filed proposed recommended orders that have been considered in the preparation of the Recommended Order.

FINDINGS OF FACT

1. At all times material to the allegations in the Administrative Complaint, Julian Irby was a licensed Professional Engineer with license number PE 43316 and Irby Engineering & Construction, Inc., held Certificate of Authorization #9511 issued by the Board of Professional Engineers. Mr. Irby has been licensed in the State of Florida as a professional engineer since 1990 and spent 21 years in the United States Navy Civil Engineer Corps. He is also a licensed general contractor.

2. Respondent Irby was the engineer of record, with the firm name on the title block of plans for a residential construction project described as, "House Relocation,

   Foundation Design, 1000 Blk La Paz St., Pensacola, FL" (the relocation project).

3. On or about June 2, 2004, Irby signed and sealed page one of one with a site plan and foundation pier detail for House Relocation at 1000 La Paz Street, and filed it with the Building Inspections Department of Escambia County (Building Department).

4. On or about June 7, 2004, Irby signed and sealed page one of one with a site plan and foundation pier detail for House Relocation at 1000 La Paz Street, and filed it with the Building Department.

5. On or about June 25, 2004, Irby signed and sealed six of six pages of plans (the June 25 plans) for House Relocation at 1000 La Paz Street, and filed them with the Building Department.

6. Permitting for the project was performed in a two- step process, with a preliminary foundation plan submitted before the house was moved from the old site in order to obtain a moving permit and foundation permit. After those permits were issued, Respondents received test results from a geotechnical firm that caused some alteration in the design of the footings to accommodate the water table at the new site. The plans upon which the building permits were ultimately

   issued and which were used by the construction crew in the building process were the June 25 plans.

7. On or about February 1, 2005, Irby signed and sealed seven of seven pages of plans for House Relocation at 1000 La Paz Street, and filed them with the Building Department on February 24, 2005.

8. The seven pages of plans for the House Relocation signed and sealed February 1, 2005, and filed with the Building Inspections Department of Escambia County on February 24, 2005, represent the relocation project as completed. Changes made during construction and approved in the field are reflected in this set of plans.

9. The Florida Building Code 2001, as amended 2003, is applicable to this case.

10. The relocation project involved moving an existing home from Perdido Bay to a location several hundred feet further inland. The house was an elevated structure at the original location and was elevated at the La Paz address. Respondent Irby was not only the engineer of record but was also the contractor for the project.

11. Certain features of the construction and design of the original structure were not known at the time the original plans were submitted for the foundation. For example, there was a façade that hid from view the I-beam, stringers and pipe

    posts under the floor of the home. These features could not be seen until the façade was removed in preparation for the move.

12. Relocation projects are subject to certain exceptions under the Florida Building Code. Some design specifications normally required when building a house are not required for a relocation project, because the existing structure need not be redesigned or brought up to code as long as it meets conditions specified in Florida Building Code Section 101.4.2.3. There is no allegation that those conditions were not met in this case.

    The primary requirement for a relocation design is foundation plans sealed by a professional engineer or architect, if required by the Florida Building Code for residential buildings or structures of the same occupancy class.

13. Respondents' plans filed with the Escambia County Building Inspections Department included foundation plans.

14. Both witnesses testifying for the Petitioner stated that they did not review or prepare any calculations related to the plans and there was no evidence presented that the Building Department had required the calculations to be submitted with the plans.

15. James Lane, who testified on behalf of the Petitioner, acknowledged that there is nothing in the Florida

    Building Code to prevent an engineer from using the dead weight of the house on the piers and the friction it creates as a method of construction. If the dead load of the house and the friction transfer from the house to the top of the piers is sufficient to address the lateral wind requirements, then straps (also referred to as connectors) would not be necessary to meet the requirements of the Florida Building Code.

16. The main wind force resisting system for the relocation project was the embedment of the foundation piers in the fiberglass reinforced slab and continuous footing in the garage area. Page 6 of the June 25 plans specifies a four-inch minimum monolithic concrete slab with fiberglass reinforcement, using 3,000 PSI concrete, as well as number 4 rebar throughout the footings. There is no requirement that the exact location of rebar splicing be noted on the plans, and the plans are not deficient for failing to provide that information. Moreover, the Florida Building Code requires that a minimum of 2,500 PSI concrete be used. Respondents' design exceeded this requirement.

17. Respondent Irby performed calculations, using the dead load weights in Florida Building Code Appendix A, that showed that the dead load of the existing house sitting on

    piers with the friction it created was more than sufficient to withstand the required lateral wind load.

18. Mark Spitznagel, P.E., reviewed both the plans and the calculations and visited the construction site. He opined that the calculations showing wind loads could be supported using dead load friction between the house and the piers were correct, and that the Florida Building Code does not require an engineer to explain that no connector, or strap, is required under this circumstance. His testimony is credited.

19. Despite the fact that no connectors were actually required, page six of the June 25 plans included directions for connectors that were used to provide additional support.

20. The Administrative Complaint alleges that the plans do not provide adequate guidance for transfer of horizontal wind loads from the house to the supporting piers and posts or how the supporting piers and posts are to resist imposed loads from the house. The evidence presented at hearing did not indicate what information the Petitioner believed would be sufficient to meet the applicable standard of care. Moreover, the evidence presented supports the conclusion that the metal posts were never intended to transfer lateral wind loads, but were to support vertical loads. The metal posts were part of the existing house and not subject to redesign under the exemption afforded in Florida Building Code Section 101.4.2.3.

21. Shear walls were not considered in the calculations performed by Irby. However, the June 25 plans included shear walls around the garage area, which served to provide extra support over and above what would be required by Irby's calculations. The detail provided on page 6 of the June 25 plans provided a clear load path from the foundation through the shear walls to the upper original structure.

22. The June 25 plans admittedly do not provide wall thickness or metal yield strength for the pipe posts, nor weld attachment, size or thickness for top and bottom plates for the pipe posts. This information is not provided because the pipe posts were part of the original structure and there was no need to redesign them or include them in the foundation plans.

23. The slab beneath the structure was also shown on sheets 1-3 and 6 of the June 25 plans. The slab characteristics are shown in the monolithic footing detail.

24. The upper floor framing members, including the floor joists and the stringers and the I-beam atop the pipe posts were part of the original house design. The house was elevated at its original location, and the stringers, I-beam and pipe posts were part of the original structure. These components did not need to be shown on the plans because of

    the exemption provided in Florida Building Code Section 101.4.2.3.

25. Respondents did not include main wind force resisting loads for the structure because the Florida Building Code does not require them to be shown for residential, as opposed to commercial, projects.

26. Based on the evidence presented, only component and cladding pressures are required to be shown on the plans, and page 6 of the June 25 plans clearly provides this information. In accordance with Florida Building Code Section 1606.1.7, wind loads for components and cladding were provided showing that the structure was designed to withstand winds up to exposure category D, at 140 miles per hour.

27. The house was actually moved and put in place on the foundation piers three days prior to Hurricane Ivan. Hurricane Ivan was a major hurricane causing extensive damage to the Pensacola area. According to the National Weather Service's Tropical Cyclone Report for the storm, Perdido Key was "essentially leveled." The house relocation project sustained no structural damage in Hurricane Ivan.

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1),

    Florida Statutes.

    
    

29. Section 471.038(3), Florida Statutes, authorizes Petitioner to provide administrative, investigative and prosecutorial services to the Florida Board of Professional Engineers. The Board is charged with regulating the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes.

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

31. Florida Administrative Code Rule 61G15-19.001(4), reads as follows:

    (4) A professional engineer shall not be negligent in the practice of engineering. The term negligence set forth in Section 471.033(1)(g), F.S., 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. Failure to comply with the procedures set forth in the Responsibility Rules as adopted by the Board of Professional Engineers shall be considered as non-compliance with the this section unless the deviation or departures are justified by the specific circumstances of the project in question and the sound professional judgment of the professional engineer.

32. Because Section 471.033 is a penal statute, Petitioner must prove the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The "clear and convincing standard" is well settled in the law:

    [T]he evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In re: Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). Further, in order to demonstrate that a license has violated a particular standard of care, the agency must submit evidence of the acceptable standard of professional conduct as well as the deviation from that standard. Purvis v. Department of Professional Regulation, Board of Veterinary Medicine, 461 So. 2d 134 (Fla. 1st DCA 1984).

33. The Administrative Complaint charges Respondents with violating Section 471.033(1)(g), Florida Statutes, as follows:

    1. In signing and sealing the plans for the La Paz Street house location project, Respondents failed to have due regard for acceptable standards of engineering principles in one or more of the following ways:

       1. The plans do not provide adequate, clear or complete guidance for transfer of horizontal wind loads from the house to the supporting piers and posts.

          
          

       2. The plans do not provide adequate, clear or complete structural guidance on how the onsite constructed piers and posts are to resist imposed loads from the house.

       3. The plans do not provide wall thickness or metal yield strength for the pipe posts, nor weld attachment, size of thickness for top and bottom plates for the pipe posts.

       4. The plans do not provide adequate detail for how the upper floor framing members were to be attached to transmit lateral wind loads to the concrete foundation piers.

       5. The plans do not describe concrete strength or continuity of rebars for the concrete foundation piers.

       6. The plans do not show beams or stringers to tie the tops of the concrete foundation piers into a structural system to receive loads at specific bearing points in the framed floor system.

       7. The plans do not adequately describe the 14-inch I-beam atop the pipe posts to provide weight of the beam, its connections to the posts or its connections to the framed floor structural members.

          
          

    2. Based on the foregoing, Respondents violated Section 471.033(1)(g), Florida Statutes.

       
       

34. Petitioner has not presented clear and convincing evidence to support the allegations in the Administrative Complaint. Several of the allegations could have been

    resolved by reviewing the calculations supporting the plans. Some are clearly refuted by the plans themselves. The remaining allegations deal with issues related to the original structure that did not have to be included in the foundation plans submitted to the Building Department for this relocation project.

35. With respect to subparagraphs 5(a), (b), and (d), the Petitioner did not provide clear and convincing evidence of what, in its view, would constitute "adequate, clear or complete guidance" or "adequate detail" such that failure to provide such guidance or detail amounts to a violation of the standard of due care. See Purvis. The more convincing evidence supports the conclusion that appropriate guidance or detail has been provided. Subparagraphs 5(c), (f) and (g) allege facts related to components of the original structure, and Petitioner has not presented clear and convincing evidence that the Florida Building Code, or any other measure by which an engineer's performance is measured, requires the items alleged to be included in the foundation plans for a relocation project. Finally, the allegations of subparagraph 5(e) are clearly rebutted by the information provided on page

    6 of the June 25 plans.

    
    

36. The undersigned has carefully considered the testimony of James Lane, Roland Holt and Mark Spitznagel. On

    the whole, Mr. Spitznagel's testimony, in conjunction with the explanations given by Mr. Irby, is simply more credible. Mr. Spitznagel reviewed the plans and the calculations, and made a site inspection to confirm information relayed on the plans.

    He also has experience with relocation projects. Mr. Lane visited the site briefly but did not perform a detailed inspection of the property. He reviewed the foundation plans, but neither prepared nor reviewed any calculations related to the project. Similarly, Mr. Holt did not visit the site, did not prepare or review any calculations and has no experience preparing plans for a house relocation. He has never before reviewed plans for a relocation project under the Florida Building Code edition applicable to this case, and the house relocation projects he has reviewed did not involve relocation of an elevated structure. Neither expert for the Petitioner provided explanations for their opinions that corresponded to provisions in the Florida Building Code.

37. Finally, the definition of negligence in Florida Administrative Code Rule 61G15-19.001(4) provides in part that "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." In this case, the relocated house was subjected to a grueling display of force almost immediately after it was

elevated to the piers constructed pursuant to Irby's design. The house withstood precisely the type of hazard for which the Administrative Complaint alleges there was an inadequate design. In an area of nearly wholesale destruction, the relocation project suffered no structural damage. The evidence presented supports the conclusion that no violation of Section 471.033(1)(g) was demonstrated with respect to the preparation of the designs in this case.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That the Administrative Complaint against Respondents be dismissed.

DONE AND ENTERED this 29th day of August, 2006, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 29th day of August, 2006.

COPIES FURNISHED:

Bruce Campbell, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

A. G. Condon, Jr., Esquire Emmanuel, Sheppard & Condon

30 South Spring Street Post Office Drawer 1271 Pensacola, Florida 32596

Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and

Professional Regulation 2507 Calloway Road, Suite 200

Tallahassee, Florida 32303-5267

Doug Sunshine, Esquire

Florida Engineers Management Corporation 2507 Callaway Road

Tallahassee, Florida 32303-5267

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 06-001871PL

Orders for Case No: 06-001871PL