Findings Of Fact By applications dated July 30, 1979, the Respondent National Advertising Company applied for eight permits to construct four double-faced outdoor advertising signs on U.S 41 and Pine Island Road, in Lee County, Florida. The applications in question stated that the signs were to be located in an unincorporated area of Lee County zoned commercial or industrial. This was consistent with the official zoning maps of Lee County, which reflected that the property upon which the signs were to be located was zoned commercial. The applications were approved by the Department on July 31, 1979, and one structure was erected. This structure bears permit numbers 11293-10 and 11294-10. Subsequently, it was determined that the zoning on the subject property was agricultural rather than commercial as stated on the permit applications. This problem was caused by a transposition error on the Lee County zoning maps which mistakenly classified the subject property as commercial. On November 1, 1979, notices of violation of Chapter 14-10.05, Florida Administrative Code were issued against the permits which alleged that the structures were in violation of law due to inappropriate zoning. The inspector who approved the Respondent's applications relied upon the representation made by the Respondent that the zoning on the property was commercial and did not independently verify this information. In reliance on the Lee County zoning maps, a representative of the Respondent entered into a lease agreement with the owner of the property on which the signs were to be located, secured Department of Transportation permits and, subsequently, county building permits. Following the erection of the first sign, the Department was informed by another sign company that the zoning on the property was improper. The Department "red-tagged" the completed sign and the remaining permitted structures, thus halting further construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Florida Department of Transportation revoking permit numbers 11293-10, 11294-10, 11296-10, 11295-10, 11299-10, 11297-10 and 11298-10, issued to the Respondent National Advertising Company to construct four double-faced outdoor advertising signs on U.S. 41 in Lee County, Florida. DONE and ORDERED this 30th day of June, 1983, in Tallahassee, Florida. SHARYN L. SMITH 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 30 day of June, 1983.
Findings Of Fact On January 8, 1988, the DOT published a Notice To Contractors that stated in pertinent part: The Florida Department of Transportation plans to receive bid proposals for the following design/build projects. This advertisement is issued to give advance notice of our design/build intentions; to allow interested parties to form design/build affiliations; and to submit letters of interest for specific project(s). For the advertised design/build projects, the contracting firm shall be prequalified with the Department in accordance with Rule 14-22 in construction class Hot Plant-Mix Bituminous Base & Surface Courses. Consultants affiliating with the contracting firm must be prequalified with the Department prior to final selection in the following types of work: Type B (Standard Roadway Design) Type K (Standard Contract Administration and Inspection) Firms shall submit a separate letter of interest for each of the following projects for which they wish to be considered: * * * State Project No. 01050-1519 CHARLOTTE COUNTY: Level, widen, and resurfacing of S.R. 776. The limits of the project will be from approximately 750 feet west of Sunnybrook Boulevard to 650 feet east of C.R. 771. Approximate length 3.3 miles. D.B.E. Goal 10.0 percent. Bonding Requirement $1,000,000. * * * Construction work may consist of resurfacing, construction of paved shoulders, extension of existing cross- drains, installation of mitered end sections on side drains, shoulder work, signing and pavement marking, sodding and grassing. Consultant services will include, but not be limited to, Construction Engineering Inspection and the preparation of construction plans in accordance with the FDOT Plans Preparation Manual (1985) and other applicable criteria, to include as appropriate: Utility Adjustment Plans, summary of pay items, signing and pavement marking plans, maintenance of traffic details, drainage design, pavement design, and Special Provisions. Any firm who has not been qualified by the Department and would like to be considered for these projects should request a Letter of Interest Submittal Package from the Bureau of Contractual Services in Tallahassee, 904/487-3487. The Department shall determine the relative ability of each firm to perform the services required for each project. Determination of ability shall be based upon staff training and experience, firm experience, location, past experience with the Departent, financial capacity, past performance and current and projected work load. The Department shall select (shortlist) not less than three firms deemed to be the most highly qualified to perform the required services to proceed with preparation of bid & technical proposals. Scope of services desired, schedules, blank contracts and special instructions will be provided at pre-bid/scope of services meeting, which will be held within 2 weeks following shortlisting. * * * SUBMITTAL REQUIREMENTS: Firms desiring consideration for this project must submit two (2) copies of their qualifications to the requesting unit listed below for each project that they are interested in. Information that must be included are the name of the project(s) to which the letter of interest applies, the names of the firms involved in the affiliation, firm's experience, location, past experience with the Department, and current and projected work load. RESPONSE EVALUATION: All respondents will be evaluated and must be determined by the Department to be qualified to do business in Florida and must be prequalified to perform the advertised work requirements prior to final selection. 2/ * * * Pursuant to DOT Rule 14-25.024(1), any person adversely affected by not being selected to provide aid proposals must file with the Clerk of Agency Proceedings, Mail Station 58, Room 562, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0458, a written Notice of Protest within 72 hours of the posting of the firms selected to prepare proposals. The firms selected to prepare bid proposals will be posted with the Clerk of Agency Proceedings on the 19th day of February, 1988. After filing a written Notice of Protest (within 72 hours of posting), a formal written protest setting forth a short and plain statement of the matters asserted by the Protestor shall be filed with the Clerk of Agency Proceedings within ten days after filing of the Notice of Protest. A failure to file a timely protest constitutes a waiver of Chapter 120 proceedings. At the time of the Notice To Contractors, and until March 13, 1988, there was no DOT rule establishing design-build procedures under Section 337.11(5), Florida Statutes (1987). Six design-build teams submitted letters of interest in response to the Notice To Contractors. Two teams later were eliminated, leaving four: (1) Ajax (the contractor)/Hole, Montes (the design consultant/construction engineering inspector (CEI)); (2) APAC/Harris; (3) Harper Bros./Aim Engineering; and (4) Wendel Kent-Gator Asphalt/Kunde, Sprecher, Yaskin. Before February 18, 1988, both DOT's central office in Tallahassee and its district office, District I, in Bartow, compiled rankings for the firms that had submitted letters of interest. Although both offices attempted to do the same thing--compile evaluations based on certain criteria--they set about their tasks differently. In Tallahassee, Mr. William Laufman and his staff developed evaluation forms complete with instructions. The forms outlined the weight to be assigned each criterion when evaluating the contractor, the design consultant, and the CEI (Construction Engineering Inspection) ability of the consultant firm. The instructions set forth the method by which the evaluations were to be done. The idea behind the evaluation forms was to promote uniformity among the evaluators. The forms were developed during the two weeks before February 16, 1988, and were completed on that date. The weight to be assigned each criterion was determined by a consensus of people within the construction, design, and CEI departments. These decisions were made when the forms were developed. The forms and the backup data used in Tallahassee to do the evaluations were "faxed" to the district office to be used when doing its evaluations. The letter of interest packets were also provided. According to the evaluation forms used in Tallahassee to evaluate contractors, the firms' overall experience, past DOT performance grades, and current and projected workload were most heavily weighted. These items were twice as important as financial capacity and location. For consultant firms and CEI ability, past performance grades on DOT jobs was most important while location was least important. The firm's experience, staff training, and current and projected workload were weighted equally. The information the central office considered necessary to do the evaluations included information contained in the letter of interest packets, the prequalification file of the contractors and consultants, and DOT documents regarding DOT experience. Some information related to certain criteria could only be gleaned from a review of the prequalification file. For example, overall firm experience and staff training and experience would be detailed in that file. All of this information was available to DOT to do the evaluations. The central office staff ranked APAC/Harris highest with a combined 82 score (contractor-62, design consultant-11, CEI consultant-9). The central office staff ranked Wendel Kent-Gator/Kunde, Sprecher & Yaskin second highest with a 78 score (contractors-56, design consultant-11, CEI consultant-11). The central office staff ranked Harper Brothers/Aim Engineering third highest with a 66 (contractor-48, design consultant-7, CEI consultant-11). The central office staff ranked Ajax/Holes, Montes fourth with a 63 (contractor-50, design consultant-7, CEI consultant-6). In contrast, the district office performed its evaluation and ranking on the morning of February 18, 1988, the date established for a teleconference meeting at which the "shortlist" would be determined. That morning, Mr. John Dewinkler, District I Director of Production, assigned Marshal Dougherty, District I Professional Services Engineer, the task of ranking the design-build teams. Dougherty had only a list identifying the teams from which to work. Dougherty ranked the design-CEI components of the teams and enlisted Donald Prescott, District I Assistant to District Construction Engineer, to rank the construction contractor component of the teams. Due to time constraints and problems experienced by the central office computer system that morning, neither was able to resort to information normally available in the central office. Dougherty relied on his own knowledge of team members and information available at the district office in Bartow. Prescott telephoned the four resident offices in District I for input on the relative abilities of the construction contractors. Prescott and Dougherty took 1 1/2 - 2 hours to do their work. Dougherty then prepared team rankings that combined his ranking with Prescott's, giving equal weight to each. Their evaluations did not strictly follow the weighted criteria set out in the central office evaluation forms. Of the four, Mr. Prescott ranked Harper Brothers first, Wendel Kent- Gator second, Gator third, APAC fourth, and Ajax fifth. The letter of interest using Gator Asphalt as the independent contractor was eliminated as a result of the competition conflict. Of the four, the district's overall rankings were Wendel Kent- Gator/Kunde first, Harper/Aim second, APAC/Harris third and Ajax/Hole, Montes last. On the afternoon of February 18, 1988, the Technical Committee convened by conference call to determine the shortlist for the projects listed on the Notice To Contractors. The members of the committee included Wally Giddens, Director of Division of Preconstruction and Design; Murray Yates, Director of Construction; John Dewinkler, Director of Production; and Donald Prescott, Assistant to District Construction Engineer in District I, Bartow. Messrs. Dewinkler and Prescott participated by telephone from their offices in Bartow; the others were in Tallahassee. Several other people were present in Tallahassee for the meeting. They included: William Laufman, Project Manager; Jack Trickey, Chief of the Bureau of Adjunct Value Engineering; Ken Morefield, Bill Dayo, and Chuck Robshaw. The central office staff (Tallahassee) recommended that Ajax be among the firms to be shortlisted. However, the district people, Messrs. Dewinkler and Prescott, expressed concerns over Ajax and requested Ajax not be placed on the shortlist. The district's "concerns" included lack of familiarity with Ajax's design team, present problems on current jobs with respect to performance and schedules, and the potential for claims on existing contracts. The concerns expressed by the district were not apparent in the information available to the central office, and some discussion was held. Since the project was going to be performed in the district, the committee deferred to the district's request and did not shortlist Ajax. The firms placed on the shortlist by the committee included: APAC/Harris; Wendell Kent-Gator/Kunde; and Harper/Aim. APAC is a top rated contractor with a lot of DOT experience. It was prequalified to do the type of work required for this project when it submitted its letter of interest. Its average grade on reports on past performance as a contractor or subcontractor for the DOT is 89.81. APAC's consultant, Harris, was also rated highly and has substantial DOT experience. Harper Brothers is a contractor prequalified for the work required for this project. While Harper Brothers has not done work for FDOT in the past three years, it still rates higher than any other contractor working in the Ft. Myers area based on past DOT work. Harper remains prequalified and has received an ability factor rating of 14, equating to a 93-98 ability score. Its design consultant, Aim Engineering, has DOT experience. Wendell Kent is a contractor that was not prequalified for the type of work required for this project--hot bituminous asphalt mix work--when it submitted its letter of interest. Wendell Kent has DOT experience, although not in this type of work, and that experience consists of only one job within the past eight years in the district where this job will be performed. Wendel Kent's average grade on reports of past performance as a contractor or subcontractor for the DOT is 93.86. Wendel Kent affiliated with Gator Asphalt, which was prequalified for this project. Gator Asphalt's average grade on reports of past performance as a contractor or subcontractor for the DOT is 89.84. Wendell Kent is to be the prime contractor on this project. It would be responsible for the overall administration of the project and construction of all items except the asphalt paving, which would be done by Gator. Wendel, Kent-Gator Asphalt's design consultant, Kunde, Sprecher, Yaskin has done design work for the DOT in the past and performed well. Ajax is prequalified and has DOT experience, including recent experience. In the last three years, Ajax has done eight or nine DOT jobs amounting to approximately $11.4 million of work. The DOT concedes that Ajax is a capable contractor. But Ajax's average grade on past performance as a contractor or subcontractor for the DOT is 86, lowest of the four. In addition, comments relating to Ajax are somewhat more negative than those of other contractors. Only Ajax received negative comments on its ability to schedule construction work, a factor to be specifically considered in the selection of a design/build contractor. For example, the comment for FDOT Project #01050-3514 in Charlotte County was: "They don't provide day-to-day supervision on the- project. They generally leave that up to whatever sub is working on the project. From a project engineer's standpoint, Ajax makes a good subcontractor but a poor prime contractor." For Project #12070-3513 in Lee County, the comment was: "This contractor could have taken more interest in controlling construction operations to achieve a better quality of construction." Ajax's more significant scheduling problems arose during the first few years of operations in Florida. After DOT criticism, Ajax has improved in this area. Of the eight or nine DOT jobs Ajax has done in the last three years, there has been a net total of four days overtime on all jobs. (This net total is arrived at by subtracting the number of days "undertime" from the overtime days to arrive at the net number of days over the time allowed by the contracts.) But of the last 13 jobs Ajax has done for the DOT, Ajax was behind schedule on seven. On two jobs started in 1984, Ajax was considerably behind schedule (15 days) on one and extremely behind schedule (51 days) on the other. Ajax knows of no potential claims on its current job. In the last three years, Ajax has had only one claim, for $6,000, that was resolved in favor of Ajax. Ajax does have a pending claim on a 1984 job that is not yet resolved. The claim is on behalf of a subcontractor. Until resolved, the claim is just a difference of opinion or a difference of contract interpretation. Ajax was also involved in a potential claim on a project known as "the embankment job." There was an error in the plans for this job at the time the contract was bid. Ajax brought this to the attention of Carson Carner, the resident engineer, who advised Ajax to bid the project as it was. Ajax did and was awarded the contract. Shortly, thereafter, Ajax requested a change order to allow for extra materials considered necessary due to the error Ajax saw-in the plans. Ajax pursued this because this error equalled approximately 10 percent of the job, which amounted to approximately $200,000. District DOT officials refused to see the error and denied the request for the change order. Ajax ultimately retained an attorney who convinced DOT of the error in the plans, and the change order was approved. Finally, mention should be made of the non-contractor components of the design/build teams. APAC's partner, Frederick R. Harris, has done design work for FDOT in the past. Harper Brothers' partner, Aim Engineering, has construction engineering inspection (CEI) experience with the Department, including a large amount of work in the Lee County area. Wendel Kent-Gator's consultant, Kunde, Sprecher and Yaskin, had considerable design experience with the Department and also had done CEI work for the agency. Ajax selected the design, CEI firm of Hole, Montes as its consultant. This firm was Ajax's second choice and was selected only when Aim Engineering was submitted by Harper Brothers. While prequalified to do so, Holes, Montes had done neither design nor CEI work for the Department.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Respondent, the Department of Transportation, enter a final order excluding the Ajax/Hole, Montes team from the short list for State Project No. 01050-1519 if that is how the DOT chooses A exercise its discretion. RECOMMENDED this 21st day of June, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of June, 1988.
Findings Of Fact The sign in issue in these proceedings is mounted on the bed of a pick- up truck which is generally parked opposite Respondent's business. The vehicle is moved daily, sometimes several times per day. On August 5, 1987, a DOT sign inspector observed Respondent's sign in an area appearing to be on the DOT right-of- way of SR 52 in Pasco County. Measurements were taken to locate the sign with respect to SR 52. The DOT right-of-way along SR 52 at this location extends 50 feet north and south of the centerline of SR 52, and 38 feet from the edge of the pavement of SR 52. On August 5, 1987, the DOT sign inspector using a steel tape measure found Respondent's sign to be located 12 feet from the edge of the pavement, thus clearly on the right-of-way.
The Issue Whether the Petitioner is entitled to be licensed as a Professional Surveyor and Mapper, under Subsections 472.013, 472.015, or 472.041, Florida Statutes (Supp. 1994).
Findings Of Fact Petitioner has provided to the Board of Professional Surveyors and Mappers numerous letters and other documents, and a check for the sum of $100 dollars as an application fee for temporary registration as a professional surveyor and mapper. Petitioner has attempted to apply for licensure, under the revised Chapter 472, Florida Statutes , individually and has sought the issuance of a Certificate of Authorization for his business concern: "Mt. Dora Mapping." Petitioner failed to complete an application for licensure on a form provided by the Respondent. Petitioner has failed to provide the correct information necessary for an application to be evaluated under any of the subsections appearing in Chapter 472, Florida Statutes. Petitioner chose not to testify at the formal hearing or otherwise provide any new evidence to be considered by this tribunal, other than documents previously submitted to the Board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for licensure as a professional surveyor and mapper be DENIED, without prejudice to reapply. DONE AND ENTERED this 1st day of April, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1997. COPIES FURNISHED: Robert B. Curtis 940 Gorham Street Mount Dora, Florida 32757 Lealand L. McCharen, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact By notice of alleged violation dated January 19, 1979, the Department charged that the Respondent, Chevron, U.S.A., installed a sign on 1-4, 23.86 miles east of U.S. 301, without a permit in violation of Rule 14-10.04, Florida Administrative Code. The notice also alleged that the sign was too close to an off ramp of 1-4, in violation of Title 23, Section 13, U.S. Code Para. 2(B). The parties stipulated that the sign is located along 1-4, a part of the Federal Interstate Highway Systems which was open to vehicular traffic in 1959-1960 and that the sign is located in the unincorporated area of Polk County. On or about October 22, 1969, the Respondent contracted with Pickett and Associates, of Tampa1 Florida, a general contractor, to construct a complete operating service station at 1-4 and SR 35-A. Included in the contract price was the cost of constructing the sign in question. An engineer for Chevron, J. L. Edgar, requested on June 4, 1969, that Pickett and Associates proceed to obtain all permits prior to construction. Due to no direct fault of the Respondent, the necessary permits to install the sign were never obtained from the Department. This fact was discovered when a sign inspector noticed the sign to be in poor condition and in need of repair. The contractor who erected the sign was contacted regarding the permits but all records relating to this particular job have been discarded. Chevron was unaware that the sign was never permitted until the notice was issued by the Department. The sign is located within five hundred (500) feet of the exit ramp off 1-4 to Kathleen Road (SR 35-A) , as measured from the spot where the road widens to the exit. No evidence was submitted to show that the sign was on the same property of the station or within one hundred (100) feet thereof.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED: That the Respondent's sign be found in violation of Rule 14- 10.06(1)(b)(2)(b) , Florida Administrative Code and Section 479.07, Florida Statutes. DONE and ORDERED this 18th day of August, 1980. in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. A. Scott Chevron, U.S.A., Inc. 3908 10th Avenue Tampa, Florida 33605 Charles Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact In May, 1982, Respondent entered into a 10 year lease with the owner of certain real estate on the East side of I-95, a federal highway now and at the time in issue, in Palm Beach County, Florida, for the erection of an advertising signboard. The site in question was located 850 feet more or less north of the intersection of I-95 with State Road 710. In order to get both state and county permits for this sign, Respondent had a survey made of the area to determine if the site of the proposed sign was more that 1,000 feet from the closest sign on the same side of the highway so as to conform to the requirements of the pertinent statute and DOT rules. This survey, completed in June, 1982, indicated that the proposed site for Respondent's sign was 1040 feet from the closest billboard on the same side of the highway. This survey, however, was not done in such a manner as to accurately indicate the distance in question because the base lines for measurement were not perpendicular to the edge of the pavement. The sign was not erected immediately, however, and to be sure that the siting was accurate, Respondent again, in July, 1983, had another survey performed by a different surveyor which reflected that the distance between the Respondent's sign and that next north of it was in excess of 1000 feet. The Respondent was issued two permits for the sign in question and has received annual renewals of those permits in 1984, 1985, and 1986. The permits in question are AH 297-12 and AH 298-12. At no time has Petitioner indicated any intention to revoke either of these permits. The billboard next north of the sign in issue here was erected by Respondent on property leased in May, 1977. This earlier dual-sided sign was issued permits number 2721 and 2722. Apparently, the tags for these permits were lost as on April 24, 1980, DOT issued new tag numbers to Respondent, AC 133-12 for 2721, and AC 134-12 for 2722. Later on, in May, 1984, Mr. Fred J. Harper, District Administrator for Petitioner, having reason to believe the two signs were too close, measured the distance between the southern and northern signs involved here. He took three separate measurements; one with an electronic odometer, one with a walking wheel belonging to DOT, and the third with a walking wheel belonging to Respondent's representative. In each of the three measurements, Mr. Harper attempted to measure from a baseline to endline each of which was perpendicular running from the post to the edge of the pavement. Though his perpendiculars were not measured by instruments, he is satisfied from his eight years of experience in his current position that his eye is accurate enough to minimize error. The three measurements made along the edge of the roadway, reflected distances of 884, 888, and 886 feet, respectively. To confirm these measurements, Mr. Harper contacted the District Surveyor, Mr. McCarthy, and requested a survey be done to establish the distance. Though he did not personally go to the site with the surveyor, he did point it out on maps and aerial surveys of the area. The survey by DOT surveyors was done by or under the supervision of Mr. McCarthy. The measurements were based on a starting point at the center line of the I-95 right of way down a line perpendicular to each pole with a 90 degree turn at the pole toward the other pole. The distance between the two poles, determined by an electronic distance measuring device, was no more than 894.4 feet. The Department notified Respondent of this in writing. This distance was not measured along the edge of the pavement, as called for in Rule 14-10.06(1)(b)4b, Florida Administrative Code, but, according to Mr. McCarthy, even if it had been, the distance in this case would have been only about 20 feet more than the 894.4 feet measured due to the slight curve in the road. In any case, the total distance would have remained under 1,000 feet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED That: Petitioner, Department of Transportation enter a Final Order revoking Respondent's sign permits AH 297-12 and AH 298-12, and directing the signs be removed. DONE and ORDERED this 11th day of December, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2248T The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Covered in Findings of Fact 1, 3, 4 and 7. Incorporated in Findings of Fact 5 and 6. Incorporated in Findings of Fact 7 and 8. Incorporated in Findings of Fact 2 and 7. Rulings on Proposed Findings of Fact Submitted by Respondent Incorporated in Findings of Fact 1 and 2. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 5. Incorporated in Finding of Fact 1. Incorporated in Finding of Fact 7. Paragraph 1 - approved. Paragraph 2 - approved. Paragraph 3 - approved. Approved. Incorporated in Finding of Fact 3. Incorporated in Finding of Fact 3. Rejected as conjecture after the fact. Rejected. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Gerald S. Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802-2151
The Issue The issue in this proceeding is whether Respondent's engineering license should be disciplined for alleged violations of Chapter 471, Florida Statutes.
Findings Of Fact Michael V. Carr, P.E. is a licensed professional engineer in the State of Florida, holding license number PE0026675. He has been engaged in the practice of engineering for more than 15 years. Mr. Carr's area of expertise is in civil and structural engineering. He is not experienced in electrical or mechanical engineering. In 1989, Mr. Carr was employed as a full-time engineer and construction project manager by a local development and construction company. He also operated, on a part-time basis, an engineering business. The purpose of his part-time business was to offer engineering services to people who are experienced in the construction industry or are working with someone who is experienced in the construction industry and have to varying degrees developed their own plans. Respondent also would serve as the construction manager on those projects. During 1989, Respondent performed engineering services on four buildings owned by four different owners. All four buildings, involved relatively simple construction. Three of the buildings, Dr. Zummarraga's office, the Raulerson/Liberty National building, and Bay Podiatry Center, were designs comparable to residential structures. The Eleventh Street Office Park, while a larger structure, was a shell building and a simple structure, as well. Respondent was not retained to provide engineering for the construction of the interior of the Eleventh Street Office Park. In regards to all four buildings, the Respondent was not retained to provide plumbing, electrical or mechanical engineering services. Those items were left to the respective trades involved in the construction of the project. The limited plans submitted for the plumbing, electrical and mechanical aspects of the four buildings met the standard of practice in the Bay County area and were sufficiently complete for the various trades to perform its respective part of each project. Moreover, the simplicity of the construction plans for these four buildings meant that standard construction methods are provided in the Standard Building Code and/or are known in the industry. Such standard construction methods include detail on roof systems, spacing and connections, as well as live load requirements. Therefore, not as much detail needed to be provided on the plans for these projects. It was standard engineering practice in the Bay County area not to include such detail if it was adequately covered in the building code. In each instance, the owners of the buildings contacted Respondent to perform limited engineering services and to act as the construction manager on each project. Except for Mr. Raulerson, each owner had, prior to the time Respondent was hired, worked out some rough plans with a person qualified to create such plans and had a general idea of what type of building they wanted. Mr. Raulerson had drafted a fairly complete set of building plans. The goal of each owner of the four projects was to obtain a set of plans from what the owner already had developed which would at least minimally meet the local building code requirements sufficiently to allow a building permit to be issued for the construction project. In each instance, the Respondent's plans were submitted to the local building code enforcement agency which reviewed and accepted the plans. A building permit was issued for each building project. During the construction of each building, Respondent provided engineering inspections on each project. The plans submitted to the Bay County building department were not as-built plans and were never intended to be 100% complete plans since several of the owners had not made final decisions on a number of details such as roof line or plumbing facilities. 1/ Such open-ended plans were justified by the specific circumstances of each case and the professional judgment of Respondent, especially since Respondent acted as the project manager of the construction project. For purposes of clarity the facts and circumstances surrounding each building and any violations of Chapter 471, Florida Statutes, in regards to each building will be outlined individually. No alleged violations of Chapter 471, Florida Statutes, were established by the evidence unless it is specifically noted below. Zummarraga Building The plans for the Zummarraga building were signed and sealed by Respondent on October 24, 1989. Dr. Zummarraga had contacted Rich Koehnemann of Koehnemann Construction Company to build an office building for him. Mr. Koehnemann sent the doctor to Jeff Robinson, a draftsman in the Bay County area, to work up a draft of the office plans the doctor desired. The doctor or Mr. Koehnemann gave Mr. Robinson a rough sketch of the office building. Mr. Robinson informed the doctor that a structural engineer would have to be involved since the County would require the plans to have the signature and seal of an architect or engineer in order to obtain a building permit. At that point, Respondent was retained to help develop a set of plans for Dr. Zummarraga. Mr. Carr was hired to draft plans for an office building. He was not hired by Dr. Zummarraga to design a building for a specific site. Therefore, no substantial site information, site work, grading or contouring details were provided on the plans for the Zummarraga project. By passing drafts of plans back and fort, a set of plans was devised by Mr. Robinson under the direct supervision and control of Respondent. Therefore, Respondent is not guilty of improperly affixing his seal to the plans for the Zummarraga project. Later, after the structure's plans were finalized, the contractor determined that a detention pond would have to be designed for the site and a DER permit obtained for the pond. Respondent was retained to design a detention pond for the site and worked with DER to meet its extensive permitting requirements for such a pond. See Chapter 17-4, 17-25 and 17-512, Florida Administrative Code. That design was submitted to DER and a permit was issued for the detention pond. The original unsealed set of plans was amended for the building department. The specific details of the more rigid DER requirements, such as site work, grading and contouring, were not included on the plans filed with the building department and the owner did not contract with Respondent to include redundant detail on the building department's plans. Essentially, the building department's plans reflected the location of the detention pond and the area of the wetlands on the property which were subject to DER jurisdiction. Additionally, the plans contained some specifications which guided the contractor on pond requirements and in grading and contouring the site. These notes in conjunction with the DER permit requirements were sufficient to accomplish the building of the detention pond. Therefore, the desire of the owner and the avoidance of unnecessarily redundant detail between the DER permit and the building department's plans justified the lack of any extensive site work detail on the building department's set of plans for the Zummarraga project. The plans devised by Mr. Carr did not contain any architectural work which was not incidental to the engineering work he performed. 2/ Therefore, Respondent is not guilty of improperly affixing his seal to plans depicting work outside his field or of practicing outside of his field. In every instance, the plans of Dr. Zummarraga's office building were of sufficient detail to meet the building department's requirements for the issuance of a building permit, to allow the contractor to construct the project according to the Standard Building Code and to obtain a certificate of occupancy from the building department. Obviously, on these facts, the plans met the standard of practice in the community for the engineering services Respondent was hired to perform. Moreover, the lack of code related, electrical or mechanical details was justified under the facts and circumstances of the Zummarraga project and it was well within the professional judgment of the Respondent to omit such details given the standards of practice in the Bay County area. Raulerson/Liberty National Building The plans for the Raulerson/Liberty National building were signed and sealed by Respondent on July 31, 1989. Mr. Raulerson is an experienced developer in the Bay County area and acts as a general contractor on his own projects. Prior to hiring Respondent, Mr. Raulerson had been working with a local draftsman and Liberty National's architect to create a set of plans for the construction of Liberty National's office building in Bay County. Mr. Raulerson contacted Respondent on the advice of Bayne Collins, a local architect. Mr. Collins advised Mr. Raulerson that his plans were complete and all he needed was an engineer to check the wind loads. 3/ Mr. Raulerson gave Respondent the plans he had developed in conjunction with Liberty National's architect. Mr. Raulerson asked Mr. Carr to go through the plans and do a structural analysis to make sure that wind load requirements were met, that the building was structurally sound and that the building met the requirements for issuance of a building permit. Mr. Carr reviewed the plans and determined that they were an excellent set of plans for a very simple, sound and over-designed structure. He calculated the wind loads for the building and completed a structural analysis of the building. He also made one minor correction to the plans. Mr. Carr thought it ridiculous to put Mr. Raulerson to the expense of copying the Liberty National plans and essentially adopted the plans as his own. In this case, the fact that the plans were not drawn under Respondent's supervision is immaterial since the specific circumstances of the project did not call for such supervision in that the plans were drafted by experienced individuals. The plans were under Respondent's control at the point in time he was hired by Mr. Raulerson and the plans submitted to him for his review and approval, disapproval or amendment. Since copying the plans would be an unnecessary duplication of effort and Respondent did in fact exercise control over the plans by reviewing them before he affixed his seal to them, Respondent is not guilty of improperly affixing his seal to construction plans. The Raulerson/Liberty National plans did not contain any architectural work which was not incidental to the engineering services he performed. Anything in the plans which may be construed as "architectural work" was requested and specified by the owner to be in the plans. Therefore, Respondent is not guilty of improperly affixing his seal to plans depicting work outside his field or of practicing outside his field. The plans did contain a roofing plan which called for pre-engineered trusses. The detail on the plan simply read "pre-engineered trusses." The plans did not contain any requirements relating to who was to design the pre- engineered trusses or requirements for structural submittals on the trusses. In the Bay county area "pre-engineered trusses" means trusses from Fagans, the local truss manufacturer. It is common knowledge, that Fagan's has a licensed engineer on staff who designs all of its pre-engineered trusses from the plans submitted to him. The pre-engineered trusses all have pre-construction documentation available. Also, submittals for the trusses accompany the trusses at the time of their delivery. With such knowledge, it is unnecessary to specify any more information or requirements regarding the truss manufacture on the Liberty National plans. Similarly it was unnecessary to detail that submittals be given to the engineer since such submittals accompanied the trusses. The absence of any more detail was justified by the specific circumstances of the Liberty National project and well within the professional judgment of the Respondent given the nature of the pre-engineered truss market in the Bay County area and the fact that Respondent was the construction manager on the project. As indicated, Respondent also acted as the construction project manager and would visit the construction site about once a week. At the point in time Mr. Raulerson was going to order the trusses, he decided to change the pitch of the roof, Mr. Raulerson did not advise Mr. Carr of his decision. Mr. Carr discovered Mr. Raulerson's change when he visited the construction site. Fortunately, Respondent had the project file with him. With the project file information and the submittals from the truss manufacturer, Respondent checked the load conditions for the changed pitch. No structural concerns were presented due to the change in pitch of the roof. The Liberty National plans were not amended because Mr. Raulerson did not contract for them to be amended. The plans were not required to be amended under Chapter 471, Florida Statutes. Respondent did not commit any violations of Chapter 471, Florida Statutes, in regards to his actions outlined above. Bay Podiatry Center The plans for the Bay Podiatry Center were signed and sealed by Respondent. However, the date the plans were signed and sealed was not included on the plans. It was inadvertently omitted by Respondent. The absence of the date is a de-minimis violation of Chapter 471, Florida Statues, and does not justify the imposition of any formal penalties. However, Respondent should be given a letter of guidance for the violation. Respondent was not brought into the Bay Podiatry Center project until the final draft of the plans was to be done. Up until that time, Dr. Wilkerson, the owner of the project, had worked up preliminary drafts of the project in conjunction with his contractor and a local draftsman. They had developed a building with an attached carport. Mr. Carr did work directly with the draftsman on the final plan. Therefore, the plans were created under the direct supervision and control of Respondent. Since Respondent supervised and controlled the finalization of the project's plans at the crucial time and since the people involved in drafting the plans did not need more supervision and control, Respondent is not guilty of improperly using his seal. There was no clear and convincing evidence which demonstrated that Respondent performed any architectural work which was not incidental to the engineering services he performed. At the time Dr. Wilkerson desired to begin construction and obtain a building permit, he had not decided on a final roofing system. Therefore, the final plans called for the use of pre-engineered trusses and did not have a great amount of detail on a roof framing plan. There was some detail provided on the page of the plans detailing the wall section of the building. This page provided sufficient detail for a competent contractor to construct the building according to code. In fact, the building was so constructed and a certificate of occupancy was issued for the building upon its completion. Again the trusses would come from Fagans. Petitioner did in fact review submittals from Fagan's truss engineer for the pre-engineered trusses used on the Bay Podiatry Center. Included in those submittals was a roofing plan in which the trusses were numbered to fit the sequence shown in the roofing plan. Respondent made sure the trusses and roof system were structurally sound. However, the owner did not contract with Respondent to amend the building department's plans. Chapter 471, Florida Statutes does not require such an amendment. Given the truss market in the Bay County area, the knowledge of Respondent regarding that market, the fact that a decision regarding a roof line had not been made when the plans were sealed, and that it was appropriate to leave such a decision for later in the construction process, no further detail was required in specifying the roof system for this project. No clear and convincing evidence was presented that demonstrated Respondent was negligent in his specifications on the roof system. The only exception to the above was that Respondent did not specify the material of the trusses over the carport. Such information is not supplied by the Code and therefore must be supplied by the engineer. The oversight was caught by the contractor when he was preparing to order the trusses. The contractor contacted Mr. Carr. Mr. Carr determined what the appropriate truss material should be and informed the contractor. The inadequacy of the plans was resolved in less than ten minutes. The omission of such a detail is negligent on the part of Respondent and is a violation of Chapter 471, Florida Statutes. However, on these facts, the omission of the detail is minor. Most of the light, plumbing and mechanical fixtures were prelocated by the owner prior to the time Respondent was hired. Respondent did not purport to draft plumbing, electrical or mechanical plans in detail in the final plan. Except in one respect, the detail was sufficient to guide the respective trades in the performance of their work and no more detail was required. The only exception was that Respondent approved a special detail of the hub drain/trap primer which was not in accordance to code. Since Respondent provided a special detail which did not meet the code requirements and which was not demonstrated to be justified by the circumstances of the Bay Podiatry project, he is guilty of negligence in the drawing of the Bay Podiatry plans in that aspect. Given the fact that this is a very small error in a larger project and that the drain was put in according to code during the construction of the building, Respondent's violation is a minor one. Finally, the draftsman, without instructions from Respondent, put some plumbing and mechanical notes in the plans which clearly did not relate to the project. Respondent did not catch the inclusion of the notes and sealed the plans with the superfluous notes in them. However, it was obvious that the notes did not relate to the project and the trades involved ignored them. The notes did not cause any problems during the construction and were not shown to be inimical to the public health and safety. Therefore, while the inclusion of the notes was sloppy work, there was no negligence shown on the part of Respondent. Eleventh Street Office Park The plans for the Eleventh Street Office Park were signed and sealed by Respondent on January 31, 1989 The Eleventh Street Office Park project demonstrates best the dynamism involved in an evolving construction project. Often, as with the Eleventh Street project, an owner is not sure of the best method or design (usually determined by lowest cost) to utilize prior to construction or whether he wants to go forward with the expense of construction of a building given certain designs. On the Eleventh Street project three plans were developed, beginning with a three story structure with structural steel and precast walls, and ending with a large, one story, cement block structure on a cement slab. All the plans were for a shell building and did not include any floor plan. Preliminary rough drawings were completed by a draftsman who was hired by the project's owner. Respondent reviewed these rough drafts and over the course of several weeks made numerous structural changes. After the plans were re-drawn to Respondent's satisfaction, he submitted them to the building department in order to obtain a building permit. There is no question that the plans for the Eleventh Street project were drawn under Respondent's direct supervision and control. Therefore, Respondent is not guilty of improperly using his seal. The plans submitted to the building department were not intended to be complete. For instance, the owner had not decided where to locate the restrooms in the building. However, the owner, for unspecified reasons, wanted to proceed with obtaining a building permit. With that decision open, the detail for the plumbing aspects of the plan were not intended to be complete or to match as to specifics. Such limited detail was intended only to place the building department and the contractor on notice that some consideration had to be given to the upcoming plumbing. The same considerations applied to the electrical and mechanical aspects of the plans. All of the evidence concerning deficiencies in the electrical design of the Eleventh Street Office Park was based on Petitioner's expert's review of a single sheet of plans obtained from the building Department. This sheet is mysterious as to its origins and relationship to the Eleventh Street project. The sheet was not prepared by Respondent, did not bear his seal, lacked the fire department's approval which was present on other pages of the project's plans, and was a different size paper than those sealed by Respondent. There was no substantial evidence which demonstrated Respondent had prepared this sheet or that the sheet reflected the electrical plans used in the Eleventh Street project. The absence of extensive detail or the provision of extraneous notes on the electrical, mechanical and plumbing aspects of the plans were justified by the fact that the owner of the project had not made up his mind in regards to those details, such decisions could be determined later in the construction process, the Eleventh Street project was a shell building and there was sufficient detail for the licensed trades to perform their tasks when the time came and the decisions were made. The incompleteness of these plans in that regard was clearly justified by the specific circumstances of the Eleventh Street project. Therefore, Respondent is not guilty of violating Chapter 471, Florida Statutes. As with the Bay Podiatry project, the only exception to the above was that the hub drain/trap primer detail was not in accordance with the building code. For the reasons stated in regards to the Bay Podiatry project, the provision of the hub drain detail constitutes negligence in the practice of engineering in violation of Section 471.033(1)(g), Florida Statutes. Again the violation is a minor one. Similarly, as with the other three projects, no substantial evidence was presented that Respondent performed any architectural services in relation to the Eleventh Street project which were not incidental to the engineering services he performed. There was a great deal of debate among the experts as to the adequacy of the structural aspects of the Eleventh Street Office Park and whether they met the standards of practice for engineers. Most of the debate centered on how much detail needed to be placed on the plans and whether the detail provided was sufficient for a contractor to build a safe building. The better evidence demonstrated that the amount of detail on the plans was sufficient to enable a contractor to build a safe building. The detail which was not contained on the plans was contained in the building code and did not need to be included on the plans. Such a practice comports with the standard of practice in the Bay County area and is a specific circumstance of a project which would enable a professional engineer to exercise his judgment and not include such detail. 4/ Moreover, although the calculations were not contained on the plans, Respondent did, in fact, determine the structural soundness of the Eleventh Street project. Therefore, Respondent is not guilty of violating Section 471.033(1)(g), Florida Statutes. The only exception to the above is that Respondent was negligent in specifying the type of mortar to be used in the concrete walls. In essence Respondent specified three different types of mortars. These mortars significantly differed as to each mortar's respective strength. Use of an improper mortar in the concrete walls can effect the strength of the wall and cause them to be unsafe. This inconsistency in detail or specifications differs from the inconsistency in details or specifications where such details or specifications obviously do not apply to the project or where such details or specifications have no contrary reference in the plans. The latter two cases while showing sloppy work are not necessarily indicative of negligence and depend greatly on the surrounding facts and circumstances before a finding of negligence can be made. The inconsistency with the mortar is indicative of negligence since a contractor may very well use the wrong mortar on a project. In this case, the inconsistency did not become a problem and Respondent was present as the project manager to handle any problem which may have arisen. Therefore, the violation of Chapter 471, Florida Statutes, is moderate to minor.
Recommendation That the Department enter a Final Order finding Respondent guilty of five violations of Chapter 471, Florida Statutes, assessing a total fine of $750.00 and placing the Respondent's license on probation for a period of one year, during which Respondent should be required to take and pass a course or courses on the proper methods of plan drafting for the four violations involving negligence; and issuing a letter of guidance for the violation involving the date. DONE and ENTERED this 22nd day of February, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1991.
Findings Of Fact The Respondent is registered with the Board as a land surveyor. He holds registration number 2027. During October, 1976, Harold J. Read, Jr., a construction contractor, retained the Respondent to make a survey of lots 9067 and 9068, on block 294, in the Florida Shores subdivision, unit number 10, located in Volusia County, Florida. The lots were owned by Read, and it was his intention to construct a house on the lots for resale. Read needed the survey in order to clear the land, and to properly locate the house on the lots. On October 8, 1976, a survey team employed by the Respondent went to the site to perform the survey. The lots are located on Royal Palm Drive. The southeast corner of the lots is located 120 feet from the corner of Royal Palm Drive and 26th Street. The survey team located the concrete monument or survey marker at the northwest corner of Royal Palm and 26th Street, and set a "tin tab" in the middle of Royal Palm Drive extending directly across the street from the permanent monument. A "tin tab" is a metal disc approximately twice the size of a quarter which is used by surveyors to make appropriate markings in the middle of streets. The tin tab is nailed into the street. The survey team then measured 120 feet along the center of Royal Palm Drive and set a tin tab which was directly across from the southeast corner of the lots. The team then measured 80 feet further along Royal Palm Drive and set a tin tab to designate the northeast corner of the lots. All of the lots in the Florida Shores subdivision are 40 feet by 125 feet, therefore the two lots owned by Read had an 80 foot frontage on Royal Palm Drive. The team measured directly from the tin tabs over to the edge of the Royal Palm Drive right-of-way and located the corners of the lots. Spaces were cleared and iron pipes were placed in the ground to mark the corners. Next to each pipe, a four foot long piece of wood lath was placed approximately eight inches in the ground, and yellow flags were tied to the stakes. These stakes were placed at the corners in order to allow the owner to easily see the locations of the corners. Four foot long stakes were used because the lots had not been cleared and the growth was rather heavy. When the southeast and northeast corners were located in this manner, the survey team performed a similar operation to locate the southwest and northwest corners. The team did not determine these corners by measuring 125 feet from the eastern corners because of the thickness of the underbrush. Instead, the team measured down 26th street 125 feet, and set the western corners walking along a cleared electrical wire right-of-way. Iron pipes and wood stakes with yellow flags were placed at each of the western boundaries. The survey team was at the site for approximately one and one half hours. Iron reinforcing rods which appeared to be markings from previous surveys were found at at least two of the corners, and in order to set the iron pipes, the survey team needed to clear underbrush. On October 13, 1976, Harold Read, several of his employees, and a dozer operator who he had hired to clear the lots appeared at the lots to clear them, and to locate the house. They found stakes somewhat shorter than those placed by the surveyors. One of the Board's witnesses testified that these stakes had yellow flags tied to them, but the rest of the witnesses testified that the flags were orange. At least two, and possibly three of the stakes were located next to iron pipes which appeared to be the corner markers. Read assumed that these stakes marked the corners, and he instructed the dozer operator to clear the property accordingly. After the lots were cleared, Read, with his employees, located the house on the lot so that there would be approximately ten feet between each end of the house and the northern and southern boundaries of the lots. Read then commenced to build the house, and in January, 1977, the house was nearly completed. In order to complete financing arrangements the lending institution that had been utilized by Read requested that the lots be resurveyed in order to assure that the house was appropriately located. On January 29, 1977, the Respondent went to the lots to perform the resurvey. He found that the lots had been cleared twenty feet too far south, and that the house had been located so that it encroached by ten feet into the lot which directly adjoined Read's lots to the south. He checked and found that the tin tabs placed by his crew were still in the center of Royal Palm Drive designating what would have been the correct boundaries of the lot. He did not find the pipes that would have marked the correct corners, so he reset pipes at the appropriate corner locations. Thereafter the Respondent checked the information with his survey team, and verified that the original survey had been done correctly. He then contacted Read about the discrepancies. Read, the Respondent, and several others visited the site later that day. The Respondent denied, and continues to deny, that the original survey was conducted improperly. Read has consistently maintained that he correctly followed the stakes that were at the site. No explanation was offered at the hearing, and it does not appear that any of the parties have evidence which would explain how the stakes and pipes came to be moved from the correct locations on October 8, when the survey was conducted, to incorrect locations on October 13, when the lots were cleared, and the house was located. It affirmatively appears from the evidence that the Respondent's crew properly performed the survey and that the Respondent was not responsible for the stakes being moved. Evidence contrary to this finding has been considered and rejected.
