Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was a registered roofing contractor in the State of Florida with license No. RR 0026422 and qualified Acoma Roofing Co. (Acoma) with the State of Florida, Department of Professional Regulation. On September 6, 1985, Acoma Roofing Co. and John Scholtens entered into an agreement whereby Acoma was to remove the existing roof, replace any rotten sheathing, install white tile on the roof, flash two (2) chimneys, and perform other work incidental to replacing roof on the home of John and Helen Scholtens located in Alachua County, Florida and known as the Red Baron Farm, for the contract price of $23,000.00. The contract as executed on September 6, 1985, and contained the standard guarantee for materials as specified and for work to be completed in a workmanlike manner according to standard practices. The guarantee also required that any alterations or deviations involving extra costs be executed only upon written orders. There was no requirement in the contract for Acoma to replace or repair any beams. The contract was silent as to who had the responsibility to obtain the permit for the job with the local building department, and both the Respondent and Scholtens assumed the other would obtain the permit. The permit was neither obtained nor posted on the job site. Neither Respondent nor Scholtens obtained the required inspections of the repair work performed by Acoma. Sometime between September 6, 1985 and November 15, 1985, Acoma began work on replacing the roof and completed the job sometime before November 30, 1985. On November 15, 1985, Scholtens paid Respondent $10,000.00 for work completed by Acoma. On November 30, 1985, Acoma presented Scholtens with an invoice for $14,110.00 which included the balance under the contract of $13,000.00 plus $1,110.00 for replacing sheathing and beams. Scholtens refused to pay for the extras and deducted $520.29 from the $13,000.00 balance for alleged damage to the Scholten's septic tank and gave Respondent a check for $12,479.61 as payment in full. As a condition of Scholtens paying the balance, Respondent agreed to add the language "5 years unconditional guarantee" to the contract. This was added due to the insistence of Helen Scholtens, an attorney at law. Sometime around the middle of June, 1986, Helen Scholtens called Respondent and complained that the roof was leaking around the chimneys and requested that Respondent fix the leak. By letter of June 20, 1986, Respondent advised her that unless he was paid the balance of $1,110.00 within five (5) days he would not fix the leak and would consider the 5 year unconditional guarantee as "null and void." On July 3, 1986, Helen Scholtens advised Respondent by letter that unless he fixed the leak they would seek legal action against him. Respondent did not fix the leak as requested, and on August 25, 1986, Scholtens obtained an estimate from Poole Roofing and Sheet Metal Co. (Poole) for repair of the leak. W. P. Yengling, an Estimator for Poole, checked the roof and gave an estimate of $1,510.00 to repair the leak and other incidentals. Scholtens contracted with Poole for the repair which was completed in early 1987. Earlier, on the original reroofing of Scholtens' home, Poole, based on an estimate prepared by Yengling, submitted a bid for the repair of the roof but was not the successful bidder; the award going to Respondent which is the subject matter of this proceeding. There was insufficient evidence to show that a leak had caused damage to the ceiling of Scholtens' home or, assuming there was a leak, that the leak was the result of Acoma's failure to flash the chimneys as contracted or a result of Acoma's poor workmanship in flashing the chimneys. On the date of the hearing Respondent had not responded to Scholtens request to repair the roof other than his response on June 20, 1986.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order suspending the Respondent's registered roofing contractor's license for a period of three (3) months, staying the suspension and placing Respondent on probation for a period of six (6) months under conditions deemed appropriate by the Board. It is further RECOMMENDED that the portion of the Administrative Complaint alleging a violation of Section 489.129(1)(m), Florida Statutes be DISMISSED. Respectfully submitted and entered this 24th day of December, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of December, 1987. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Jim Squitiro, Pro Se 1492 Overcash Drive Dunedin, Florida 32528 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue presented for decision herein is whether or not Respondent is guilty of misconduct, as is more Particularly alleged in an Administrative Complaint dated November 26, 1986, and which is more particularly set forth hereinafter in detail, and if so, what penalty should be imposed.
Findings Of Fact At times material hereto, Respondent was licensed as a professional engineer, having been issued License No. PE0014862. Philip Clark contracted with Gilbert Simm, the owner of Quality Foods, Inc., to prepare architectural plans depicting the interior finishing of the food processing area to be contained in an existing warehouse owned by Simm. Pursuant to his contract with Simm, Clark hired Respondent to prepare the mechanical-design portion of the plans. Respondent prepared said mechanical-design plans consisting of sheet M- 1 and affixed his seal and name thereto. Bernard Amangual, general contractor, applied for a building permit to commence construction of the food processing area based on the plans submitted by Respondent. (Petitioner's Exhibits 1 and 3) The building permit was rejected by the Metropolitan Dade Building Department on January 27, 1986. John Ariton, mechanical plans examiner for Dade County, prepared a mechanical processing comment sheet after reviewing Respondent's drawings which reflected several mechanical-design elements depicted by Respondent which failed to comply with the South Florida Building Code. Ariton further completed a design criteria sheet upon review of Respondent's plans. (Petitioner's Exhibits 4 and 5) Dade County enforces the South Florida Building Code, which has adopted the requirements and standards of the National Fire Protection Association (NFPA). Petitioner retained the services of Berton Hufsey, received as an expert herein in the field of mechanical engineering, to examine Respondent's plans prior to the hearing and to file a report which was done contemporaneous with said examination outlining noted deficiencies in Respondent's design, several of which were checked on the Building Department's mechanical processing comment sheet. Among denoted deficiencies, Respondent's plans failed to provide for sufficient exhaust air for the hood as the capacity of the exhaust air shown on the mechanical plans was 7200 cfm and the Code requirement is 7500 cfm. Respondent failed to recite the dimensions of the cooking equipment under the hood on the mechanical drawing. Respondent only provided for one exhaust tap in the 15 foot hood design in violation of the South Florida Building Code, which required that there be one tap for every eight (8) feet. Respondent failed to note in his plans the description or indication of the wall adjacent to the hood, or of the roof above the hood, to indicate it was either of combustible material or whether or not the 18-inch required clearance had been satisfied. Respondent failed to provide any reference to the size of sheet metal ductwork that goes from the hood to the exhaust fan, which is in violation of the South Florida Building Code. When the plans were submitted by Respondent and were presented to the Building Department, there were no energy calculations made. The automatic extinguisher system shown on the mechanical plans as submitted by Respondent did not provide for an automatic means to ensure the shutdown of fuel or power upon system activation. The gas riser did not indicate an automatic shut-off valve to stop the flow of gas in the event of fire as is required by the South Florida Building Code. An engineer who affixes his seal and name to plans thereby indicates that the plans are complete and ready for submission. An engineer is required to date all plans bearing his seal and signature. Respondent acknowledges that he provided the wrong hood size in the mechanical drawings. He also acknowledged that the fire extinguisher system usually provides for a shut-off valve in the mechanical drawings, which was not provided. Aside therefrom, Respondent considered the other deficiencies noted above were merely technical deficiencies which he should have been afforded an opportunity to complete. In this regard, Respondent contends that the engineer, Philip Clark, did not give him the details to make the necessary energy calculations or details about various equipment items, and therefore, it was impossible for him to make the necessary calculations and provide the required details.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: Respondent pay an administrative fine of $1,000. Respondent's license be placed on probation for a period of six (6) months, during which time Respondent will be required to complete a study guide in a course in professionalism and ethics as required by Petitioner. RECOMMENDED this 1st day of July, 1987, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0034 Respondent's memoranda is in the form of a summary of the testimony which was considered by me in preparation of the Recommended Order. However, the following responses are provided to the summation given by Respondent. Item 3 Rejected as irrelevant to a determination of the issues posed. Items 4 and 5: Rejected based on other credible evidence indicating that the drawing does not contain the requisite sign, seal and date as is required by statute and rules and that there were numerous deficiencies as referred to by expert witness Berton Hufsey. Rulings on Petitioner's proposed findings of fact: FOF 23 Rejected as argument or a conclusion. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Paul A. Poliquin 324 West Rivo Alto Drive Miami, Florida 33139 Honorable Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what penalty, if any, should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a foreign corporation authorized to do business in Florida. Respondent's "core business is building automation systems" that "regulate the . . . energy consuming systems in a building," and it holds itself out as an "energy performance contractor." Respondent has a certification of authority to engage in contracting in Florida in the categories of electrical contracting, mechanical contracting, and general contracting. Respondent does not now have, nor has it ever had, a certification to engage in the practice of engineering in Florida through employees employed by it. Lawrence B. Stoff is now, and has been for the past nine years, an employee of Respondent's, working as a "project manager in the performance contracting field." His "focus" is "evaluating buildings for energy savings opportunities." Mr. Stoff is a Florida-licensed professional engineer, holding Florida P.E. number 46998. Several years ago, Respondent responded to a Request for Proposals (RFP 98-379V) issued by the School Board of Broward County (School Board) seeking proposals for "Energy Management Performance Contracting Services." RFP 98-379V contained the following "introduction" describing the objective of the RFP and the services sought: OBJECTIVE The School Board of Broward County, Florida (hereinafter referred to as "SBBC") is requesting proposals from interested and qualified performance contractors to implement Energy Conservation Opportunities (ECOs) in SBBC facilities. SBBC plans to select the three most qualified contractors to enter into a Guaranteed Energy Savings Contract pursuant to Florida Statutes, Chapter 235.215, Educational Facilities, Energy Efficiency Contracting. The term of the contract shall be a maximum of ten years from date of contract approval by the School Board. Guaranteed energy savings contract may extend beyond the fiscal year in which it became effective; however, the term of the contract shall expire at the end of each fiscal year and will be automatically renewed annually up to 10 years subject to SBBC making sufficient annual appropriations based upon continued realized energy savings. The contract shall stipulate that the agreement does not constitute a debt, liability, or obligation of SBBC or a pledge of faith and credit of the District. The successful contractors shall provide a written savings guarantee in accordance with Chapter 489.145, Contracting, Energy Efficiency Contracting. The total program costs, including financed equipment cost, maintenance costs, SBBC project maintenance costs, SBBC Project Management costs, and all other costs, shall be 100 percent (100%) covered by energy savings. SBBC will require the successful proposers to fund a SBBC hired "Project Manager." The successful proposers cannot begin any work including, but not limited to, the pilot project until SBBC receives the funds and hires the "Project Manager." The current annual salary for this position is $66,610 which includes benefits. One third of the annual cost for the "Project Manager" will be provided by each selected contractor. The written guarantee must state that the energy savings will meet or exceed the costs of the ECO's, including cost of the "Project Manager." (i.e. The total costs must be funded out of savings accrued from energy conservation.) SBBC shall make fixed payments to the performance contractor or its assignee for the term of the guaranteed energy savings contract. Such payments shall not exceed the total savings realized under this program for the term of this Agreement. The objective of SBBC in issuing this Request for Proposals (RFP) is to enhance the school district's ongoing energy conservation and management program and to upgrade SBBC facilities through performance contracting. The energy conservation measures may be realized through facility alteration that reduces energy consumption or operating costs including but not limited to all energy conservation measures listed in Chapter 235.215. SCOPE The three selected proposers shall provide SBBC with a comprehensive energy services program including but not limited to: (a) complete energy audits and technical engineering analyses, (b) design and installation of the most cost-effective energy efficient equipment and systems, including enhancements to its existing School Board-wide Andover Controls Corp. based energy management system, (c) training staff on installed ECOs, (d) monitoring of energy costs, (e) power quality services, (f) financing for the project, and (g) a written energy guarantee that total program costs shall be 100 percent (100%) covered by program energy savings. The proposed agreement shall not constitute a debt, liability, or obligation of SBBC, nor is it a pledge of the faith and credit of SBBC. Respondent was subsequently selected, in accordance with the procedures set forth in RFP 98-379V, as one of the "qualified performance contractors to implement Energy Conservation Opportunities (ECOs) in SBBC facilities." On or about July 20, 2001, Respondent and the School Board entered into an Energy Audit Agreement, pursuant to which Respondent was to perform an energy audit and prepare a detailed report regarding Miramar High School to determine the feasibility of entering into an energy performance-based contract. The Energy Audit Agreement contained the following introductory clauses: Whereas, SBBC has issued a Request for Proposals, RFP 98-379V (RFP) and issued an Addendum thereto collectively referred to as "RFP" and made a part hereof by reference, to identify qualified energy performance contractors for energy performance-based contracts; and Whereas, the Company submitted a response to the RFP [which is made a part hereof by reference and is referred to as "Proposal"] and participated in a competitive evaluation procedure designed to identify qualified energy performance contractors; and Whereas, SBBC has selected the Company as a qualified energy performance contractor; and Whereas, SBBC is responsible for the operation, management and maintenance of facilities identified in the scope of this project, also listed in Attachment "A"; and Whereas, a comprehensive Investment Grade Energy Audit (hereafter referred to as the "Energy Audit") and a detailed Engineering and Economic Report (hereafter referred to as "Report") must be performed at the Facilities in order to determine the feasibility of entering into an energy performance-based contract to provide for the installation and implementation of Energy Conservation Measures (hereafter referred to as "ECMs") at the Facilities; and Whereas, Energy Performance Contracting (hereafter referred to as "EPC") is a generic term used to refer to an energy performance-based contract; and Whereas, Energy Services Agreement (hereafter referred to as "ESA") means the contract document governing an energy performance-based contract under Section 235.215, Florida Statutes; and Whereas, if the ECMs recommended by the Company are determined to be feasible by SBBC, and if the amount of energy savings can be reasonably ascertained and guaranteed in an amount sufficient to cover all costs associated with an energy performance contracting project at the Facilities as further defined in Article 1, Section F, the Parties intend to negotiate an ESA under which the Company would design, procure, install, implement, maintain and monitor such energy conservation measures at the Facilities. Article 1 of the Energy Audit Agreement described the "Scope of Investment Grade Energy Audit and Report." Its prefatory paragraph read as follows: For each of the Facilities listed in Attachment A, the Company will perform an Energy Audit and prepare a detailed Report which specifically identifies the improvements in energy consumption recommended for installation or implementation at each Facility. The Report shall contain detailed projections of Energy and Utility Savings to be obtained at the Facilities as a result of the installation of the recommended ECMs. The savings calculations must utilize assumptions, projections and baselines which best represent the true value of future Energy and Utility Savings for the Facilities, i.e.: utilize accurate marginal cost for each unit of savings at the time the audit is performed; documented material and adjustments to the baseline to reflect current conditions at the Facilities compared to the historic base period resulting from scheduled new construction and remodeling projects to be implemented by SBBC and listed in the Adopted District Facilities Work Program for Fiscal Years 1999-2000 to 2004-2005; calculations which account for the interactive effects of the recommended ECMs. The Report shall describe the Company's plan for installation or implementation of the ECMs in the Facilities, including all anticipated Associated Costs with such installation and implementation. The primary purpose of the Report is to provide engineering and economic basis for negotiating an ESA between SBBC and the Company; however, SBBC shall be under no obligation to negotiate such a contract. Section G of Article 1 of the Energy Audit Agreement addressed the "Report Content and Acceptance Procedure," and provided, in pertinent part, that, "[i]n accordance with Florida Statute, the report shall be signed by a Florida Registered Professional Engineer." Article 2 of the Energy Audit Agreement read as follows: Energy Services Agreement The Parties intend to negotiate an ESA under which the Company would design, install and implement energy conservation measures agreed to by the Parties and provide certain maintenance and monitoring services. The Company shall be obligated to enter into an ESA on the basis of the Report, provided SBBC proceeds with the development of the ESA in a timeframe which allows the ESA to be finalized within the timeframe specified in Article 1, Section G(3). However, nothing in this Agreement should be construed as an obligation on the part of the SBBC to execute an ESA. The terms and provisions of such an ESA shall be set forth in a separate agreement. Pursuant to its normal practice, Respondent contracted with an engineering firm, Engineering Matrix, Inc., to prepare the audit report. The audit report Engineering Matrix prepared "was not accepted favorably by the [School Board, which] requested that it be reworked by [Respondent's] staff with whom [the School Board] was familiar." Respondent complied with the School Board's request. It had Mr. Stoff "rework" the report. Respondent provided the School Board with an audit report, dated August 27, 2002, that incorporated the revisions Mr. Stoff had made (Revised Technical Audit Report). The Revised Technical Audit Report was essentially "a proposal of energy conservation measures [at Miramar High School] that would result in energy savings if implemented." Its "general scope and content [were] fairly typical" of the "reports that [were] issued by [Respondent] under Section 235.215," Florida Statutes. The Revised Technical Audit Report contained the following Energy Consultant Certification signed by Mr. Stoff: As the Energy Consultant and a Florida registered engineer responsible for preparing this report, I hereby certify that: This Study and Report has been performed in accordance with the most current accepted energy practices and procedures. The members of the Audit Team are qualified to perform the analysis, investigations, and duties assigned to them for the purpose of fulfilling the intent of the report. This Study has thoroughly examined this building for the purpose of identifying the opportunities which exist for reducing energy consumption. The data, recommendations and analysis contained in this Report have been performed using standard engineering practices and to the best of my knowledge are correct. Mr. Stoff signed the Revised Technical Audit Report as a professional engineer, using his Florida P.E. number. The Revised Technical Audit Report served as the basis for negotiations between Respondent and the School Board that ultimately lead to an Energy Services Agreement between them, as contemplated by the Energy Audit Agreement. Respondent was paid somewhere between $650,000 to $800,000 in connection with the work it performed at Miramar High School pursuant to its agreement with School Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order dismissing the Amended Administrative Complaint issued against Respondent in its entirety. DONE AND ENTERED this 13th day of June, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 13th day of June, 2006.
The Issue The issue in this case is whether certain proposed amendments to Florida Administrative Code Rule 61G20-2.002 enlarge, modify, and/or contravene the cited provisions of law implemented, so as to render the proposed amendments invalid exercises of delegated legislative authority.
Findings Of Fact The Commission is the state agency responsible for the development and maintenance of the Florida Building Code under chapter 553, Florida Statutes (2017),1/ and chapter 61G20-2. The Commission is created as a distinct agency, but is located within the Department of Business and Professional Regulation for administrative purposes. § 553.74(1), Fla. Stat. The subject matter at issue in this case is the Florida Building Code update and amendment process, as recently changed in section 553.73. On November 15, 2017, the Commission published a Notice of Proposed Rule to substantially rewrite rule 61G20-2.002 (the proposed rule), “in order to conform with changes made to section 553.73” by the 2017 Legislature. FAAIA is a professional association representing roughly 2,700 architects licensed in Florida. These Florida-licensed architects are the overwhelming majority of FAAIA’s members. FAAIA’s Florida-licensed architect members are subject to the requirements of the Florida Building Code in the practice of their profession. A failure to comply with the requirements of the Florida Building Code exposes a licensed architect to discipline against his or her license, as well as potential liability for negligence. See, e.g., Seibert v. Bayport Beach & Tennis Club Ass’n, 573 So. 2d 889, 891 (Fla. 2d DCA 1990) (statutory remedy and common law negligence each provided independent basis for finding liability derived from architect’s violation of the building code); Juhn v. Dep’t of Prof’l Reg., 431 So. 2d 190 (Fla. 1st DCA 1983)(architect can be disciplined by licensing board for failing to comply with applicable codes). The subject matter of the proposed rule is within the scope of FAAIA’s representation of its members in the normal course of its business and activities. As a professional association, FAAIA routinely represents its members before the Florida Legislature as well as before state agencies, and in DOAH administrative proceedings on matters of policy and regulation of its members’ practice. On behalf of its members, FAAIA challenges two aspects of the proposed rule, asserting that in two respects, the proposed rule does not square with the “unambiguous” provisions of the 2017 law intended to be implemented. As the parties represented, FAAIA’s objections to the proposed rule present legal questions that must be answered by comparing the statutory language before and after amendment in 2017, so as to determine whether the proposed rule implements the amended law, as the Commission contends, or whether the proposed rule enlarges, modifies, and/or contravenes the amended law, as FAAIA contends. The parties offered no extrinsic aids as evidence to consider in interpreting the 2017 law, such as legislative staff analyses or other evidence regarding the 2017 legislative action. Instead, both parties contend that the statutory changes at issue are clear and unambiguous, albeit they manage to reach diametrically opposed interpretations of the “clear and unambiguous” statutory changes.
The Issue The Administrative Complaint in this cause charges the Respondent with having been the qualifier for Re-Mod-Co Builders, Inc., and that Re-Mod-Co contracted with Mr. and Mrs. Edward Macek to repair the roof of the Macek home in Fort Myers, Florida. The Administrative Complaint charges that no permit was obtained for the Macek roofing job, contrary to Section 107.2, Standard Building Code, as adopted by Lee County, Florida, and that the Respondent was not certified or registered as a roofing contractor, contrary to the provisions of Ordinance 80-31, Section (1)(a) and 8-8(3)(a) of Code of Laws and Ordinances in Lee County. The Administrative Complaint alleges that the foregoing violations constitute a violation of Section 489.129(1)(d), Florida Statutes, because the Respondent willfully or deliberately disregarded and violated the laws of the state or of any municipality or county thereof.
Findings Of Fact Dennis E. Rodriguez was issued a residential contractor's license number CR CO12393 in February, 1978. Rodriguez qualified Re-Mod-Co Builders, Inc., in November of 1950, and license number CR CAI2393 was issued to Dennis E. Rodriguez, Re-Mod-Co Builders, Inc., 4023 W. Water Avenue, Tampa, Florida 33612. In March, 1951, a change of status was submitted by Respondent, requesting that license number CR CA12393 issued to Rodriguez and Re-Mod-Co be changed to reflect qualification of Bay to Bay Designs. At the time of the hearing, the Respondent held license number CR CO12393. On February 10, 1951, Re-Mod-Co Builders, Inc., contracted with Mr. and Mrs. Edward Macek to repair the roof of their home at 1553 Braeburn Road, Fort Myers, Florida 33907, and completed the contract work on February 16, 1981. The records of the Lee County Building Department reflect that no roofing permits were issued between February 6 through February 16, 1981, to Re-Mod-Co Builders, Inc., for owner Edward Macek. The ordinances of Lee County require that a permit be obtained prior to repairing a roof within Lee County. The ordinances of Lee County also require the certification or registration of roofing contractors and limit to roofing contractors the repair to roofs within Lee County. See Section 107.2, Standard Building Code, as adopted by Lee County Ordinance 81-5 and Section (1)(a) and Section 8-8(3)(a), Ordinance 50-31, Code of Laws and Ordinances in Lee County. The records of the Department of Professional Regulation do not reflect that Dennis E. Rodriguez is now or ever has been a registered or certified roofing contractor. At the time that Re-Mod-Co Builders, Inc., repaired the Maceks' roof, Dennis E. Rodriguez was not a certified or registered roofing contractor, and Re-Mod-Co Builders, Inc., for which Rodriguez was qualifier, did not obtain a building permit for the repairs to the Maceks' roof. Respondent Rodriguez had no knowledge of the operation of Re-Mod-Co Builders, Inc., in Fort Myers or the fact that said company entered into a contract to repair the roof of Edward Macek. Said work was done under the direction of John Franta (phonetic). The Respondent had no knowledge of Re-Mod- Co Builders, Inc., operating outside of Hillsborough County until the secretary for the corporation told him. When the Respondent became aware that Re-Mod-Co was operating under his license in Fort Myers, the Respondent immediately advised the Board to change his qualification from Re-Mod-Co to Bay to Bay Designs. The Respondent received $400 per week to schedule jobs for Re-Mod-Co, order materials, and check the performance of subcontractors for Re-Mod-Co within Hillsborough County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint against Dennis Rodriguez be dismissed because the allegations are not proven. DONE and RECOMMENDED this 11th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1983. COPIES FURNISHED: Xavier J Fernandez, Esquire 2021 Hendry Street Post Office Box 1222 Fort Myers, Florida 33902 Frank V. Vaccaro, Esquire 316 Hyde Park Avenue Tampa, Florida 33606 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 16942 DOAH CASE NO. 82-1340 DENNIS E. RODRIGUEZ, Respondent. /
The Issue Whether disciplinary action should be taken against Respondent's license as a professional engineer as a result of violations of Section 471.023 and Subsection 471.033(1)(g), Florida Statutes (2004), as alleged in the Administrative Complaint.
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent, Lawrence L. George, P.E., was a licensed professional engineer in the State of Florida, License No. PE21282. Florida Engineer Management Corporation is charged with the duty of providing administrative, investigative, and professional services to the Board of Professional Engineers (Board). The Board is charged with regulating the practice of engineering in Florida. On or about June 7, 2002, Respondent began to provide engineering services to Atlantic, a manufacturer of window and door units with glass encased in polyvinyl chloride frames, through the auspices of Highlands. Highlands did not have a certificate of authorization until October 20, 2003. Respondent provided to Atlantic a signed and sealed letter dated June 24, 2002, certifying that the Royal A-135 vinyl windows using laminated glass (two and one-eighth inch glass layers with one-eighth inch laminate) met the requirements of the 2001 Florida Building Code (the Code). Respondent's June 24, 2002, letter certified that the windows met the large missile/small missile impact requirements of the Code. The June 24, 2002, letter, certifying that the windows met the large missile/small missile impact requirements of the Code, as submitted, supported the conclusion that insulating glass windows manufactured by Atlantic complied with the Code. Royal A-135 windows made by Atlantic are insulating glass windows. Insulating glass has two or more layers of glass separated by air spaces. Test data submitted for Royal A-135 insulating glass windows does not meet the missile impact test of the Code. Section 1606.1.4 of the Code and the tests referenced therein require testing of entire window assemblies to comply with the large missile/small missile impact tests. The Royal A-135 insulating glass windows manufactured by Atlantic were not tested as required by the Code. At the final hearing, Respondent admitted that his engineering analysis in lieu of testing did not meet the requirements of the Code. The June 24, 2002, letter was also submitted to the City of Dunedin Building Department as a representation that the Royal A-135 windows made by Atlantic met the Code as far as missile impact tests. The wind load analyses provided by Respondent to Atlantic were required to be filed with the building department of the City of Dunedin in order to get construction permits. Pursuant to the Code, the City of Dunedin is wholly within an area designated a wind-borne debris region. On or about July 27, 2002, Respondent sent to Atlantic a signed and sealed letter that confirmed that a mullion detail satisfied the Code requirements in wind zones up to 140 mph wind speeds. On or about August 3, 2002, Respondent signed and sealed a drawing on Atlantic stationery of a mullion detail. The mullion detail is for a structural element between individual window assemblies. It forms a connection extending the length of the windows. The mullions designed by Respondent were not tested to determine compliance with the Code. On or about August 3, 2002, Respondent also provided to Atlantic a signed and sealed wind load analysis for the installation of replacement windows for a seventh floor apartment located at Nine Forbes Place, Dunedin, Florida (Forbes Place). On or about January 16, 2003, Respondent provided to Atlantic a signed and sealed wind load analysis for the installation of replacement windows for a second-story apartment in a multi-story building located at 634 Edgewater Drive, Dunedin, Florida (Edgewater Drive). On or about June 10, 2003, Respondent provided to Atlantic a signed and sealed wind load analysis for the installation of 150 replacement windows for a two-story apartment complex, Victoria Apartments at 1101 Victoria Drive, Dunedin, Florida (Victoria Apartments). On or about January 6, 2004, Respondent submitted to the Florida Department of Community Affairs (DCA) a validation that the windows described in paragraph five complied with the Code. This validation was for the purpose of establishing the windows as "approved products," or standards, published on the Florida Building Code Information Systems' website for design professionals. Respondent submitted test results to the DCA for laminated glass windows manufactured by other companies, but those tests do not support the conclusion that insulated glass windows made by Atlantic would pass the missile impact tests. Respondent never provided test results for laminated glass windows made by Atlantic. Respondent did not provide an engineering design to show that the mullion would be directly connected to the substrate supporting the window. Respondent did not provide an engineering analysis to address deflection of the mullion under design pressure loads. A mullion of the type certified in the July 27, 2002, letter was used in the Victoria Apartments. Respondent designed the mullions to be constructed on-site at the Victoria Apartments as the windows were installed. The annealed glass insulating replacement windows for Victoria Apartments were not impact resistant. The Victoria Apartments with the Atlantic replacement windows are partially enclosed structures within the meaning of the Code. Respondent did not provide calculations in the wind load analysis for Victoria Apartments to show that the structural elements of the apartments could resist design load for a partially enclosed building after replacement of all the windows. It is not necessary to determine whether the mullions used at Victoria Apartments were integral parts of the units or connectors that had to be directly attached to the substrate. If the windows used integral mullions, they were not tested as required by the Code; if the windows employed mullions that were not integral, they were not engineered as required by the Code. Wind load calculations for Forbes Place used one-third increase in allowable stress to the structure and assemblies, which is contrary to the Code. Wind load calculations for Forbes Place did not take into account the height of the building. Wind load calculations for the Edgewater Drive project used an improper importance factor of 0.77. Use of an importance factor of 0.77 was a misinterpretation of the Code. Wind load calculations for Edgewater Drive did not take into account the height of the building. Respondent did submit an application for product approval to the Florida Building Code Information System for Royal A-135 windows on or about January 6, 2004. The application for product approval included Respondent's letter of June 24, 2002. The product approval system is a vehicle by which manufacturers can get statewide approval for products through a website operated by the Florida Building Commission. Beginning in 2003, manufacturers could submit documentation for particular products through the website. When the manufacturer submits its documentation, it may also present a validation through the website, such as the one Respondent presented in Exhibit P4. After a product has been validated, the submission may be forwarded to the Florida Building Commission for approval, but the fact the validation appears on the website does not mean it has been approved. Approval by the Florida Building Commission is limited to whether required documents have been properly filed; it does not mean that the documents submitted by the validating engineer contain technically correct information. Technical information and analysis is not reviewed by the Florida Building Commission. The Board is the only entity currently charged with the responsibility to investigate whether a validating engineer has provided accurate engineering in a submission to the product approval system. Respondent's June 24, 2002, letter is confusing and misleading in its references to both insulating and laminated glass. Respondent had difficulty navigating the Florida Building Code Information System website and repeatedly submitted an application for product approval to authorities. Respondent continued to enclose the June 24, 2002, letter with the application to represent that insulating glass windows comply with the missile impact requirements of the Code. Continued use of the letter in his application process manifests continuing negligence or incompetence by Respondent. However, Respondent, later in 2004, adopted procedures for submittal to local building departments that would better explain his wind load calculations.
Recommendation Based on the foregoing Findings and Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineering adopt the foregoing Findings of Fact and Conclusions of Law and enter a final order imposing a penalty of: a reprimand; six months' suspension, followed by five years' probation; and an administrative fine of $12,000, plus the costs of these proceedings. DONE AND ENTERED this 21st day of December, 2004, 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 21st day of December, 2004. COPIES FURNISHED: Bruce A. Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Lawrence L. George, P.E. 5920 Winewood Drive Lakeland, Florida 33813 Teresa Baker, Clerk Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267
