STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On November 3, 2009, a duly-noticed hearing by video teleconference was held in Tallahassee, Florida and Jacksonville, Florida, before Lisa Shearer Nelson, an administrative law judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John Jefferson Rimes, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

For Respondent: Kamal Yazji, P.E., pro se

5488 River Trail Road, South Jacksonville, Florida 32277

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated Section 471.033(1)(g), Florida Statutes (2006), and Florida Administrative Code Rule 61G15-33.003(2), and if so, what penalties should be imposed?

PRELIMINARY STATEMENT

On November 21, 2008, the Florida Engineers Management Corporation on behalf of Petitioner, Florida Board of Professional Engineers, filed an Administrative Complaint against Respondent, Kamal Yazji, alleging violations of Section 471.033(1)(g), Florida Statutes (2006), and Florida Administrative Code Rule 61G15-33.003(2). Respondent originally filed an election of rights form requesting an "informal" hearing pursuant to Section 120.57(2), Florida Statutes. However, in response to Requests for Admissions served by Petitioner, Respondent denied several material allegations in the Administrative Complaint. Accordingly, on August 13, 2009, Petitioner forwarded the case to the Division of Administrative Hearings and requested that an administrative law judge be assigned to conduct a Section 120.57(1) hearing.

On September 3, 2009, a Notice of Hearing by Video Teleconference was issued setting the case for November 3, 2009. The parties filed a Pre-hearing Stipulation on October 30, 2009, containing several stipulated facts that are, where relevant, incorporated into the findings of fact below.

At hearing, Petitioner presented the expert testimony of Homer Ooten, and Petitioner's Exhibits 1 and 2 were admitted into evidence. Respondent testified on his own behalf, presented the testimony of Robert Antione and Hilton Meadows, and submitted no exhibits. Petitioner also indicated at the commencement of the

hearing that it was withdrawing paragraphs 5.d., e., and f. of the Administrative Complaint. Accordingly, no findings will be made with respect to these allegations.

At the request of the parties, proposed recommended orders were to be filed 30 days from the filing of the Transcript, which was filed with the Division on November 18, 2009. Both parties timely submitted their Proposed Recommended Orders, which have been carefully considered in the preparation of this Recommended Order. All references are to the 2006 codification of the Florida Statutes, unless otherwise indicated.

FINDINGS OF FACT

1. The Florida Board of Professional Engineers is the administrative agency charged with the licensing and regulation of engineering pursuant to Section 20.165(4)(a) and Chapters 455 and 471, Florida Statutes.

2. At all times material to this proceeding, Respondent was, and remains, a licensed professional engineer, having been issued license number PE 15252.

3. In or about March 2007, Respondent prepared, signed and sealed plans for a project to remodel an existing building for use as a church. Respondent was the only engineer to sign and seal the church plans, and no limitation on his responsibilities as engineer of record were disclosed on the plans.

4. Petitioner's Composite Exhibit 1 consists of three sheets of plans related to the church project: 1) the structural

   plan, labeled "S"; 2) the existing floor plan, demolishing floor plan, and new floor plan, labeled "A-1"; and 3) the electrical lighting recepts plan and plumbing plan, labeled "E,P."

5. The S sheet contained drawings for the foundation plan, the platform framing plan, and the framing layout plan, along with detail sections for each. The S sheet contained notes for the contractor, and design criteria for structural material. Petitioner makes no claims that there are deficiencies in the structural plans.

6. Sheet A-1 contains drawings for the seating plan, the new floor plan, and the existing floor plan/demolishing plan, as well as a drawing of the typical interior wall section. Sheet A-

   1 includes a box listing the scope of work to be performed, and a separate listing of the applicable codes and code summary. Included in the listed applicable codes are the Florida Building Code, 2005 revision; the Florida Plumbing Code of 2004; the National Electric Code 2005; the Florida Mechanical Code 2004; and the Florida Fire Prevention Code 2004. The plans specify that the building will be used as a church, with an occupancy load of 127.

7. Sheet E,P contains drawings for the new plumbing plan, toilets layout, existing water heater detail in the attic; the sewer riser plan; and the electrical lighting and recepts plan. There are work notes for both the plumbing and electrical work, as well as an electrical legend.

8. The electrical plans do not include an electrical riser diagram, and contain no information as to the amount of electrical power coursing through the structure. There are also no load computations or load summary or circuitry reflected on the plans. It cannot be determined from the plans how much load was used prior to the renovation and how much load will exist afterwards. No information is provided to demonstrate how power is delivered to an HVAC unit or water heater, even though the units themselves are shown on the design.

9. The plumbing plans do not include any information regarding the location of a cleanout for purposes of maintenance of the sewage system. Respondent did not include this information because there was already a cleanout in place for the building that was not being disturbed.

10. The plans signed and sealed by Respondent do not contain any mechanical plans. Respondent claimed that mechanical design was beyond the scope of his services and that he discussed this with his client. However, the plans themselves reference the Florida Mechanical Code as being applicable to the plans and nothing expressly excludes mechanical work from the work to be performed.

11. There is no mention in the plans for the provision of "outside air" to the users of the structure.

12. The plans were submitted to and reviewed by the City of Jacksonville permitting office, and were approved for permitting. All required inspections were conducted and passed.

    CONCLUSIONS OF LAW

    
    

13. 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 (2009).

14. This proceeding is a disciplinary proceeding to take action against Respondent's certification to teach in the State of Florida. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

15. As stated by the Supreme Court of Florida,

    
    

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and 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 Henson, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

    
    

    v. Walker, 429 So. 797, 800 (Fla. 4th DCA 1983).

    
    

16. Statutes that authorize the imposition of penal sanctions must be strictly construed, and ambiguity must be

    construed in favor of the Respondent. Elmariah v. Department of Professional Regulation, 574 So. 2d 164, 165 (Fla. 1st DCA 1990). Moreover, any violation of Chapter 471, Florida Statutes, or the rules adopted pursuant to Chapter 471, must be based upon specific allegations within the Administrative Complaint. See Trevisani v. Department of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); and Hunter v. Department of Professional Regulation, 458 So. 2d 842 (Fla. 2nd DCA 1984).

17. The operative paragraphs in the Administrative Complaint are as follows:

    1. Respondent prepared plans for a church building remodel project located in Jacksonville, FL.

       
       

    2. On March 19, 2007, Respondent signed and sealed plans for the project that included plumbing, electrical and HVAC design.

       
       

    3. Respondent's plans are deficient in one or more of the following ways:

       
       

       1. There are no calculations to indicate that outside air requirements (per FBS- Mechanical) have been addressed when the building was converted from a 12 room building (purpose/use unknown) to a church with a sanctuary intended to seat 123 occupants.

       2. There is no Electrical Load Summary and no Electrical riser Diagram. The Existing Electrical Panel is shown to be 200 Amps, 3 phase with 24 breakers. However, no circuiting is shown. These omissions violate 61G15-33.003(2), F.A.C.

       3. No plumbing clean-outs are shown in violation of the Florida Building Code.

          
          

          * * *

          Based on the foregoing, Respondent is charged with violating Section 471.033(1)(g), Florida Statutes, and by [sic] and Rule 61G15- 33.003(2), Fla. Admin. Code, engaging in negligence in the practice of engineering.

          
          

18. Only violations of Section 471.033(1)(g), Florida Statutes, and Florida Administrative Code Rule 61G15-33.003(2) are charged in the Administrative Complaint. While testimony was presented at hearing regarding other possible rule violations, only those matters actually charged will be discussed herein.

19. Section 471.033, Florida Statutes, provides in pertinent part as follows:

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

       
       

       * * *

       
       

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

       
       

       * * *

       
       

    2. The board shall specify, by rule, what acts or omissions constitute a violation of subsection (1).

    3. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       1. Denial of an application for licensure.

       2. Revocation or suspension of a license.

       3. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

       4. Issuance of a reprimand.

       5. Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify.

       6. Restriction of the authorized scope of practice by the licensee.

       7. Restitution.

    4. The management corporation shall reissue the license of a disciplined engineer or business upon certification by the board that the disciplined person has complied with all of the terms and conditions set forth in the final order.

    
    

20. The Florida Board of Engineers has defined the term "negligence" as required by Section 471.033(2), Florida Statutes, in Florida Administrative Code Rule 61G15-19.001(4). The definition in the Rule provides:

    (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 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.

    
    

21. Florida Administrative Code Rule 61G15-33.003 is considered one of the Responsibility Rules of the Board.

    Subsection (2) provides in pertinent part:

    
    

    1. Electrical Engineering Documents applicable to power systems shall at a minimum indicate the following:

       
       

       1. Power Distribution Riser Diagram with short circuit values.

    
    

    * * *

    
    

    (h) Load computations.

    
    

22. Petitioner has proven by clear and convincing evidence that, with respect to the electrical deficiencies alleged in paragraph 5.b. of the Administrative Complaint, Respondent has violated both Section 471.033(1)(g), Florida Statutes, and Rule 61G15-33.003(2). As stated in the findings of fact, neither a power distribution riser diagram nor load calculations were included in the plans for the church project. Failure to adhere to the requirements to include the electrical riser diagram, the load calculations and the circuitry of all outlets, equipment and devices violated the rule, and therefore constitutes negligence as contemplated by Section 471.033(1)(g).

23. Petitioner has not demonstrated a violation of Section 471.033(1)(g) with respect to the failure to include calculations for the outside air requirements. Petitioner's expert witness did not cite to a specific provision in the Florida Building Code and the Petitioner did not provide a copy of the Code. Likewise, while Petitioner's expert referred to Florida Administrative Code 61G15-34.003 as requiring the outside air calculations, Respondent was not charged with violating Rule 61G15-34.003.

24. The same can be said for the allegations related to the failure to provide for plumbing cleanouts. No specific citation in the Florida Building Code was cited, either in testimony or by providing the Code itself. Moreover, an examination of the portion of the Florida Building Code related to cleanouts references several predicate requirements for two-way cleanouts that were not established. While Florida Administrative Code Rule 61G15-34.007 was referenced by Petitioner's expert witness, Respondent was not charged with violating this rule.

25. The Board has adopted disciplinary guidelines for imposing penalties, as required by Section 455.2273, Florida Statutes. For negligence in violation of Section 471.033(1)(g), Florida Statutes, the minimum penalty is a reprimand, two years' probation and a $1,000 fine. Fla. Admin. Code R. 61G15- 19.004(2)(g). Petitioner has asked for this minimum penalty under the guidelines.

RECOMMENDATION

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

RECOMMENDED that the Florida Board of Professional Engineers enter a Final Order finding that Respondent is guilty of violating Section 471.033(1)(g), Florida Statutes (2006), and Florida Administrative Code Rule 61G15-33.003(2). It is further recommended that Respondent be reprimanded, fined $1,000, that his license be placed on probation for a period of two years,

and that costs be assessed pursuant to Section 455.227(3), Florida Statutes.

DONE AND ENTERED this 20th day of January, 2010, 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

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

Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2010.

COPIES FURNISHED:

John Jefferson Rimes, Esquire Board of Professional Engineers 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

Kamal Yazji, P.E.

5488 River Trail Road, South Jacksonville, Florida 32277

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, 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: 09-004296PL

Orders for Case No: 09-004296PL