The Issue Whether the construction activities undertaken by Respondent at the home of George Scantland which lies seaward of the Sarasota County Coastal Construction Control Line constitute a violation of Section 161.053(12), Florida Statutes, and Rule 16B-33.004(4), Florida Administrative Code, and, if so, should an administrative fine be assessed against the Respondent.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. George Scantland owns a single-family home on Casey Key in Sarasota County, Florida, which lies seaward of the Sarasota County Coastal Construction Control Line ("CCCL"). Scantland contracted with the Respondent to perform certain construction activities at his home. At the time Respondent entered into the contract, Garry Battaglia was President of the Respondent corporation. On February 13, 1990, the Respondent requested a consultation from the Department regarding the proposed construction activities at Scantland's home. The Respondent submitted a plan of the proposed construction along with the consultation request. At the time of the consultation request, Scantland's single-family home consisted of an on-grade slab on the ground floor level and an elevated second floor with a wooden cantilevered deck on the north and south sides of the property. The consultation request and plan indicate that the Respondent wished to construct a third-story addition including a cupola above the existing second floor, an elevator within the existing wall on the south side of the home, and an enclosure for stairs outside on the existing south side wall. On June 4, 1990, a Department engineer responded to the consultation request in a letter notifying the Respondent that the proposed third-story addition, the cupola and the elevator qualified for an exemption. However, construction of the stairwell enclosure did not qualify for an exemption pursuant to Section 161.053(12), Florida Statutes, because the enclosure modified the existing structure outside the limits of the existing foundation. And, pursuant to Rule 16B-33.004(4), Florida Administrative Code, a permit was required for the proposed stairwell enclosure because the enclosure constituted an addition to a major structure proposed above a preexisting concrete deck. On October 18, 1990, the Department's area inspector visited Scantland's home, prepared a site inspection report, and took photographs. The site inspection report indicates that Respondent was engaged in construction activities at Scantland's home and requested comment from the Department's staff as to whether the work was exempt or required a permit. The first photograph (Exhibit 2A) taken on October 18, 1990, by the area inspector indicates that the existing concrete deck on the ground floor of the north side of the house had been drilled and rebar had been inserted and that concrete blocks were being placed at the bottom of the drills and rebar locations. Another photo (Exhibit 2C) taken on October 18, 1990, by the area inspector depicts the southern wall of the house with temporary shorings supporting the remains of the second floor wooden deck located on top of the preexisting concrete deck. The photo shows that wooden posts in the concrete deck, which had supported the second floor elevated wooden deck, had been flush cut to the ground. After reviewing the site inspection report and photographs, the area engineer in Tallahassee asked the inspector to revisit the site to gather further information regarding Respondent's construction activities. The area inspector revisited the site on October 24, 1990, and prepared a Warning Notice and Violation Report which he hand-delivered to an employee of the Respondent on the job site. The area inspector also took additional photographs (Exhibits 5A-5C) during this visit. The Warning Notice was issued for the placement of drilled rebar and block columns atop an existing concrete slab and placement of a tie-beam system atop the block columns. The Warning Notice put the Respondent (owner's agent) on notice that a violation has possibly occurred and instructed the Respondent to stop construction pending a determination from the Department's Tallahassee office. The Violation Report, which begins the formal entry into the violation process, was issued to both Scantland and the Respondent for the construction of new perimeter block walls atop an existing ground floor concrete deck seaward of the CCCL without obtaining a permit from the Department. The area inspector's initial determination that Respondent's construction activities constituted a statutory violation was confirmed by the Department's engineering staff in Tallahassee. The photographs (Ex. 5A - 5C) taken by the area inspector on October 24, 1990 demonstrate that even after receipt of the Warning Notice, the Respondent continued construction at Scantland's home. The first photograph (Ex. 5A) taken from the north side of the house, shows that placement of the rebar and columns had been completed and a beam had been constructed across and underneath the existing wooden deck on the second floor. A second photograph (Ex. 5B) taken from the south side of the house, shows the new columns and new tie-beams constructed atop the preexisting concrete deck. On November 16, 1990, the area inspector conducted a follow-up inspection of the site, prepared a site inspection report, and took photographs (Ex. 7A -7B). The site inspection report confirms that Respondent was still engaged in construction activities at the site. The report indicates that the area inspector spoke with Garry Battaglia on the site and that Battaglia planned to continue construction until a stop work order was received. Battaglia advised the area inspector at this time that he was applying for a permit for the work. The first photograph (Ex. 7A) taken by the area inspector on November 16, 1990 is an exterior view of the south side of the house which shows that the wall atop the preexisting concrete deck on the southern addition was completed. The second photograph (Ex. 7B) shows the interior of the southern wall where construction of the second story was taking place over the new column wall and tie-beam system built atop the preexisting concrete deck. The Respondent received a copy of a Notice of Apparent Violation of Section 161.053(2), Florida Statutes, dated November 20, 1990, issued by the Department to Scantland for unauthorized construction/excavation seaward of the Sarasota County CCCL. The Notice advised the parties to stop construction activities pending compliance with the law. On December 10, 1990, the Department received an after-the-fact permit application, plan of construction, and survey of the property from the Respondent as agent for Scantland. The plan of construction accurately depicts the structure which is currently on the property, as modified by the Respondent. The completed construction is totally different from the construction activities described in Respondent's consultation request of February 13, 1990. The consultation request submitted to the Department by Respondent in February, 1990 did not indicate that any construction would occur on the north or west side of the structure above the preexisting concrete deck or that the elevator would be constructed on the southwest corner of the home outside the existing wall or that an enlarged garage/storage area would be constructed. All of the above were ultimately constructed by Respondent. The survey of the property, dated March 23, 1990, shows that there was preexisting concrete deck on the ground floor level and a wooden deck on the second floor and that the concrete deck was a separate entity from the strip footing supporting the preexisting structure and that there was no enclosed space above the preexisting concrete deck. On December 19, 1990 the area inspector returned to the site and took additional photographs (Ex. 10A - 10C) and filed a site inspection report. The Respondent continued to engage in construction on the house even after receipt of the Warning Notice and Notice of Apparent Violation. The construction on the south and west sides of the house were never completed, there was a new corridor wall between the elevator shaft and the interior wall of the house, a new column and some new slabs on the ground outside the preexisting foundation of the house. On January 2, 1991, in response to the after-the-fact permit application, plan and survey filed by the Respondent, the Department staff advised the Respondent by letter that the application was incomplete and told the Respondent to stop any further construction activities on the site that had been identified as requiring a Department permit. On January 10, 1991, the Department received from Respondent another plan of the existing structure entitled "Existing First Floor Drawing" drawn on October 25, 1990. The drawing indicates that there was open lattice on the south side of the house; and, the drawing refers to the concrete on the north and south sides of the home as "concrete walk". On January 17, 1991, the area inspector visited the site again, took additional photographs (Ex. 12A -12C) and filed a site inspection report. Again, it was evident that Respondent continued construction on the house despite receipt of the Department's notice of January 2, 1991 advising Respondent to cease any further construction activities. The Respondent received a Notice of Violation, Cease and Desist Order issued by the Department on January 17, 1991 for unauthorized construction seaward of the CCCL. On July 22, 1991, the Department issued Permit No. ST-807 ATF CF to the Respondent as agent for Scantland, authorizing the after-the-fact activities and the proposed minor structures with the condition that the violation would be addressed by the Department through a separate agency action. The generally-accepted definition of "foundation" states that a foundation is the support part of a structure and is restricted to the structural member that transmits the superstructure load to the earth. The strip footing, or wall footing, directly beneath Scantland's home transmits the load of the superstructure to the ground and thus constitutes the foundation of the preexisting structure. The footings on the north and south sides of the home underneath the concrete deck did not support the preexisting structure but rather only supported the preexisting second story wooden deck. As such, the footings below the concrete deck did not constitute part of the foundation of the preexisting structure. The construction at Scantland's home constitutes construction outside the foundation of the Scantland's home and additions to the Scantland's home above the preexisting concrete deck. Respondent knew, or should have known, that a construction permit was required for the construction activities at the Scantland home based on the Department's response to the consultation request. Respondent's continued construction activities at the Scantland home constitutes a violation of the statutes and rules and was intentional in that the Respondent continued the construction activities at the Scantland home despite the repeated notices and warnings by the Department to cease construction until the matter was resolved. The Respondent was agent for Scantland and responsible for obtaining all necessary permits. The construction activities conducted at the Scantland home by the Respondent does not come within the exemption provided for in Section 161.053(12), Florida Statutes, and Rule 16B-33.004(4), Florida Administrative Code, adopted in accordance with the Department's statutory authority. Therefore, the construction was a violation of the statute and Department rule in that Respondent failed to obtain a permit before beginning construction. And, such violation could subject the Respondent, as the owner's agent responsible for obtaining the permit, to a possible assessment of an administrative fine pursuant to Section 161.054, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED: That the Department enter a final order assessing an administrative fine in the amount of One Thousand Five Hundred and No/100 Dollars ($1,500.00) against Respondent. In making this recommendation, I am mindful of Respondent's repeated failure to comply with the repeated notices and warnings without any attempts to resolve the matter. Another basis for the fine is to ensure immediate and continuous compliance in the future as set forth in Section 161.054(4), Florida Statutes. DONE AND ENTERED this 28th day of October, 1992 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2292 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner The following proposed findings of fact are adopted as modified in substance in the Recommended Order. The number(s) in parenthesis is the Finding of Fact which so adopts the preceding proposed finding(s) of fact: 1-9(1-9 respectively): 10(10-11); 11(12); 12(13); 13(13, 14); 14(15); 15(16); 16(17); 17(18-20); 18(21); 19(22); 20(23-24); 21(25); 22(26); 23(27); 24(28-29); 25 (30); 26-28(31); 29(32); 30(33); 31-33(34); 34(35); 35(36); 37(37); 38(38-39); 39(40); and 40-42(41-44). The Department's proposed finding of fact 36 is covered in the Preliminary Statement. The Respondent did not file any proposed findings of fact. COPIES FURNISHED: Lanette M. Price, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 Garry Battaglia, Qualified Representative G & R builders of Distinction, Inc. 107 Corporation Way, Suite B Venice, Florida 34292 Virginia B. Wetherell Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, Florida 32399-3000
The Issue The issues in this matter are those raised by an Administrative Complaint brought by the Petitioner against the Respondent charging the Respondent with violations of Chapter 489, Florida Statutes. In particular, these allegations pertain to services performed by the Respondent as a roofing contractor, for the benefit of one Dale Weich. These offenses are more completely described in the Conclusions of Law section to this Recommended Order.
Findings Of Fact At all relevant times to this case, Respondent Rex Alaniz was a registered roofing contractor having been issued license number RC0042021 by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Within that time sequence, Alaniz also served as the qualifying agent for Rex Alaniz Roofing and Remodeling Co. On July 27, 1983, Respondent entered into a contract with Dale Weich to effect repairs to Weich's home. That residence was located in Jacksonville Beach, Florida. The substance of the repairs primarily dealt with leaks in a built- up flat room over the garage at the Weich residence, as it joined the house. The main part of the house had a pitch roof covered with terra-cotta tiles. Work was also to be done on the terra-cotta roof. The work on the garage area, where the flat roof was found, included the placement of tar and gravel and the replacement of certain timbers in the garage structure. The roof was leaking in four distinct locations. A copy of the contract may be found as Petitioner's exhibit number 7 admitted into evidence. That contract is in the amount of $860.00 which has been paid to the Respondent in exchange for the work. The work was warranted, per the contract, for a period of one year. On July 28, 1983, Respondent commenced work. When the Respondent showed up for work and began the process, he had not obtained a building permit from the City of Jacksonville Beach. A permit was obtained before the work was completed on July 28, 1983. In failing to obtain the permit initially, Respondent was knowingly or deliberately disregarding the requirements to obtain it, in that he had frequently done work at Jacksonville Beach and was aware of the need to pull the permit before commencing the work. Under the circumstances, the failure to obtain the permit before commencing the work is not found to be an oversight by Respondent. On the same date the work was done, it rained and the roof leaked in the same places it had leaked before repairs were made. There ensued a number of trips on the part of Respondent and his employee to attempt to correct the circumstance. This included adjusting the tiles on the roof to the main house; placing additional tar on the built-up roof over the garage; placing water on the roof by the use of a garden hose, at which time the roof did not leak, and plugging up a small opening at the edge of the roof. On one of the visits by the Respondent following the work of July 28, 1983, it was raining and the roof was leaking and these leaks were observed by the Respondent. Weich tried to contact the Respondent after the events described immediately above, in an effort to get the Respondent to correct the problems. He received no response from Alaniz. Sometime around September 1983, Weich saw the Respondent in a store and told the Respondent that the roof was still leaking and asked that the Respondent return to fix the leaks. Respondent agreed to return to the job, but has yet to honor that agreement. This discussion in the store was not one in which Weich agreed to pay the Respondent additional money to return to the job, as was testified to by the Respondent in the course of the final hearing. At the time of the final hearing, the roof still leaked in those places for which Respondent had contracted to complete repairs.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Ronald L. Hurt, was a licensed professional engineer having been issued license number PE 0032435 by petitioner, Department of Professional Regulation, Board of Professional Engineers (Board). Respondent was first licensed as a professional engineer in Kentucky in 1965 and received his Florida license in 1982. When the events herein occurred, respondent was a shareholder in and served as president of Anchor Engineering Company (Anchor) in Naples, Florida. He also supervised the structural engineering portion of the firm's business. He has since terminated that relationship and is now affiliated with another engineering firm in the same city. In August 1989 the City of Cape Coral (the City) issued an invitation to various engineering firms, including Anchor, to submit proposals to investigate the structural integrity of a seven year old abandoned building owned by the City and located on St. Jock Boulevard. The City was considering whether to complete construction of the building and convert it into a community theater or to demolish the existing structure and build a new facility. At that time, the building was approximately 90% complete but without a roof and was between 6,000 and 8,000 square feet in size. Anchor was the successful "bidder" and respondent ultimately submitted a final written report to the City. Relying upon that report, the City decided to continue completion of the building. The project was successfully completed and is now known as the Cape Coral Community Theater. However, an engineer from another firm in Cape Coral obtained a copy of respondent's report, reviewed it, and based upon his belief that the report was deficient, filed a complaint against respondent with the Department of Professional Regulation (DPR). That prompted an investigation by DPR and the issuance of an administrative complaint charging respondent with negligence in the preparation of his report. The Scope of the Engagement The City's decision to seek a structural report came after another professional engineer, James A. Schivinski, had performed an inspection and prepared a "general physical condition report." The work was performed on an undisclosed date by Schivinski without charge and as a favor to the City. After making a field inspection, Schivinski recommended the City have a structural analysis of the building performed by a professional engineer. This was because he had observed "serious defects in the masonry wall construction of the building". Until a further assessment of the structural integrity of the building was made, Schwinski recommended that "work (should) not be continued." 1/ Schwinski's conclusions and recommendation are contained in a written report submitted to the City and received in evidence as petitioner's exhibit 2. Acting upon Schivinski's recommendation, on August 1, 1989, the City, through its contracts administrator, Al Melendez, telephonically solicited proposals from various engineering firms. Because the City desired to make a decision on the building as soon as possible, Melendez asked that each firm submit its proposal by the following day. Anchor did so and proposed to complete the work for $4,500. Other proposals included one by the engineering firm of Jenkins and Charland, which submitted a proposal in the amount of $14,000. Anchor's proposal was accepted by the city on August 2 and Anchor was told to complete a written report within two weeks from the date on which it was selected. The scope of the engagement was not reduced to writing by the City. However, according to Melendez, Anchor was to look at Schivinski's report, review a set of original drawings, and advise the City if it could "reasonably finish up the building." Anchor was not requested to perform testing to verify the strength of materials nor to furnish a final design report for the project. Further, the City did not expect Anchor to give them actual cost estimates for performing any required modifications. In its response to the invitation, Anchor agreed to (a) perform an on- site structural investigation of the existing structure ($1500), (b) review existing drawings of the structure ($1800), and (c) issue a written report based on the findings in the first two steps ($1200). The City agreed with this scope of services and Anchor proceeded in accordance with its proposal. As noted earlier, both the City and Anchor understood that no testing of materials (e. g., compression, prism and compaction tests) was to be performed by Anchor but instead would be done at a later time by a specialized testing firm if the City decided to continue with the project. The Preparation and Issuance of the Report Two Anchor professional engineers, Tony Boumitri and Paul Endres, promptly visited the building site on two occasions and made a visual inspection. In addition, respondent made two subsequent visits to the site to confirm his colleagues' conclusions. They also reviewed Schivinski's report and the original building plans for the structure. After a preliminary draft was prepared by Boumitri on August 11, 1989, respondent met with city officials for three hours to explain its content, answer questions and determine if further information was required. A final report entitled Structural Investigation Analysis and Report was then prepared by respondent, and another three-hour meeting with city officials was held to explain its content. On August 18, 1989, respondent signed and sealed the final report and delivered it to city officials. Thereafter, respondent met for several hours with the full city commission and gave an oral presentation concerning his report. The record raises an inference that a transcript of the commission meeting is available, and respondent's remarks and explanations given to the commission are available for review by any interested party. Among other things, respondent advised the City that his report was a preliminary report, that testing and confirmation of materials was still required at a later date, that the structure did not meet code requirements, but that with appropriate modifications the building could be used for its intended function. The Genesis of this Complaint On an undisclosed date after the report had been filed, a professional engineer, Jack T. Sauerland, who happened to work for the engineering firm which had submitted the unsuccessful $14,000 bid, requested a copy of respondent's report from the City. Ostensibly for the purpose of acting as a concerned citizen and taxpayer, Sauerland reviewed the preliminary and final reports, noted what he perceived to be various deficiencies in the final report, discussed those observations with certain city employees, and filed a complaint against respondent with DPR. That precipitated the filing of this action against respondent. Standards Governing Professional Engineers Both parties agree there are no written standards which set forth the specific matters that a professional engineer must put in an engineering report. According to the Board's expert, this is because a report can be used for a number of purposes and it would be difficult to write a rule that would fit all situations. However, the Board expert identified two broad standards, both set forth in Rule 21H-19.001(3)(a), Florida Administrative Code, that must be followed by a professional engineer when drafting a report. First, the engineer must use "due care" in preparing the report, and secondly, he must have "due regard for accepted engineering principles". According to the expert, these principles include such things as technology, mathematics, logic, and the clear and precise use of language. In other words, a report must proceed logically from evidence to assumption to analysis to conclusion and do so in clear and precise language. It is also inappropriate to omit information from the report even if the client is aware of the information being omitted. This is because persons using the report at a future time would not be privy to that omitted information and would be unable to evaluate its reliability. Thus, while an engineering report must satisfy the clients, it must also be complete enough to safeguard the public health, safety and welfare. The expert also opined that when an engineer's client is a governmental entity, such as a city, it is improper to supplement a written report by oral communications because (a) third parties relying on the written report at a future time would have no way of reviewing those oral comments and (b) the public records law dictates that such reports be reduced to writing. The Contents of the Report The report in question has been received in evidence as a part of petitioner's composite exhibit 6 and consists of ten pages including photographs. The written portion of the report is four and one-half pages. In addition, respondent submitted twelve pages of notes and calculations in conjunction with the report. The report is divided into six sections, including summary of findings, background information, field investigation, analysis, recommendations and conclusion. The scope of the report was described on page one as follows: Based on the data obtained, and based on the available drawings, Mr. Boumitri and Mr. Endres performed their structural analysis to deter- mine the adequacy of the structure, in its present condition, to serve its intended purposes. The intent of this investigation and report is to determine whether the existing structure can be safely completed to serve its intended purposes according to sound engineering and construction practices. Under the field investigation portion of the report, there are eight evidentiary findings. Because they (and other portions of the report) are in issue, they are repeated below: The foundation seems to have been con- structed according to the architectural plans, based on the test pits that have been excavated at three different locations of the building. Some of the pilaster columns have not been completed or may not have been constructed according to the architectural plans. Some of the pilasters on the north side as well as the south side of the building do not extend to the top of the tie beam. Using an "R" meter we have been able to determine the actual location of the existing bars. Some of the vertical reinforcement is mislocated and other vertical reinforcement is missing. Most of the horizontal joint rein- forcement was placed at approximately 4'-0" O.C. Numerous cracks were found in the walls and slabs. Other cracks or separations exist between the walls and the concrete masonry pilasters as shown on the north wall of the building. Most of the masonry units were constructed as running bond, yet some of the units were constructed as stack bond. Some features of less importance such as the interior stairs on the East end of the building are rotated 90 degrees from their original design as shown on the plans. Other walls and windows may have been added, de- leted or relocated and they no longer conform to the architectural plans. The workmanship in placing the masonry units varies from adequate to far below ade- quate level of today's standards. Most of the walls are in a wavy condition which may require a varying thickness of stucco finishes. Immediately after the foregoing findings, the report contains a section entitled "Analysis" consisting of six paragraphs, with the caveat that such analysis "takes into consideration the lack of inspection." They read as follows: The foundation seems adequate to carry the intended load in the interior locations around the stage and exterior locations as well. The number and location of the existing vertical reinforcement is not adequate enought to carry the intended lateral load and doesn't meet the minimum requirements of the 1979 edition or the 1985 /86 edition of the "Standard Building Code". The quantity and spacing of the existing horizontal joint reinforcement is adequate to meet the minimum area of steel reinforcement specified in the 1985/86 edition of the "Standard Building Code" for reinforced masonry. The height to thickness ratio of most of the masonry walls, interior and exterior, is above the recommended value in the 1979 or the 1985/86 edition of the "Standard Building Code." The beam over the stage area appears to be capable of carrying its intended load. This beam, due to the direction of the joists carries little of the roof load and is loaded nearly to its intended load presently. Little or no deflection is currently visable (sic). The steel joists appear to be capable of carrying their intended load based on data given by Tom Rayburr of Florida Aluminum. There are also five recommendations in the report which follow the analysis. They read as follows: A field survey be implemented to document the as built features of the building. Finish the construction of all pilasters as shown on the architectural plans. Provide a #5 bar in each pilaster, dowel the bottom end into the footing, dowel the top end into the tie beam, then fill with grout. Where the existing vertical reinforcement, whether in term of pilasters or filled cells, exceed the 5'-0" maximum spacing, provide a #5 hook bar at each roof joist location or at 5'-0" maximum spacing where no roof joist exits at exterior walls and at 13'-0" o.c. at interior walls. Weld the bar directly to the plate or to the bar of the tie beam. The other end of the #5 bars will extend to the bottom of the wall and will be drilled and epoxied into the foundation using epoxy non-shrink grout. Form and pour a minimum 8"x8" pilaster around it subject to Architectural approval. Where a pilaster is not feasible, provide a flat A36 steel bar (2"x1/4" minimum) instead of the #5 bar. The flat steel bar shall be hooked top and bottom to the tie beam and footing respectively. Alternatively, instead of the proposed pilasters, place 6x6 W2.XW2.9 W.W.F. flat sheets along both faces of the masonry walls. A minimum of 1" thick non-shrink grout shall be placed on each wall face. The welded wire fabric mesh shall be connected with metal ties thru the masonry wall at 32" intervals. Stucco finishes with standard metal lath shall be provided or as specified by the Architect. The ultimate conclusion of the report reads as follows: Although the building in its present condition does not meet the minimum code requirements, it can be reinforced in an efficient manner that would render it capable of serving its intended function. Criticisms of the Report It should be noted that the agency did not allege nor prove that the scope of investigation and review by respondent in preparing the report was improper or that the client was dissatisfied with his services. Also, the Board does not question the competency of respondent. Rather, the Board contends that respondent was negligent by failing to include greater detail and explanation in the written report. To support this charge the Board presented its consulting professional engineer, James O. Power, and the testimony of Sauerland, the complaining witness and also a professional engineer. Besides himself, respondent presented the testimony of two professional engineers, an architect, and the city engineer. The more credible and persuasive testimony is set forth below. It is true, as respondent points out, that in preparing his report, the agency's consulting engineer did not review the original building plans, make an on-site inspection or read the transcript of the city commission meeting when the report was formally presented to the commission. Thus, the expert was not privy to the many discussions between respondent and the City during the preparation of the report. However, Power considered none of these matters to be essential since his criticisms related only to the actual contents of the report itself. The DPR expert first found that "the scope of the investigation was never clearly defined" in the report. Although the witness did not specifically identify which portion of the report he considered to be deficient, it may be inferred that the witness was referring to the statement of intent (scope of report) recited in finding of fact 12 and the following language found in the first paragraph of the "Field Investigation" section of the report: Our field investigation has been performed for the purpose of establishing whether the structure is constructed according to plans and specification by Stout & Gerald, Inc. Architects of Cape Coral, Florida. According to Power, the report should have included a description of services to be provided by respondent to the client pursuant to their agreement. This would include such matters as whether or not (a) testing would be performed, (b) the structure would be evaluated for code compliance, (c) a design for corrective measures would be furnished, (d) a cost estimate for such modifications would be given, and (e) the investigation, evaluation and recommendations would be based on sound engineering principles. Although the parties clearly understood the scope of the investigation through several meetings and conversations, the written report itself did not adequately memorialize that agreement. 2/ Therefore, respondent is in technical violation of the engineering principle that he use due care in preparing the report. The expert also pointed out that respondent merely stated his assumptions without giving any justification for the same in the report or attached calculations. Those assumptions pertained to the foundation capacity, strength of the reinforcing steel, strength of the concrete, and strength of the concrete block masonry. While DPR's expert found most of the assumptions to be reasonable, the report itself does not state on what basis (e.g., testing, estimates, visual inspection, industry standards, experience, or other factors) the assumptions were made. Unless the logic underlying the assumptions is disclosed, a third party using the report would have no way to ascertain the reliability of the conclusions. While respondent may have orally explained the basis for his assumptions to city officials, and there was no uncertainty on the part of the client, a technical deviation from the due care principle occurred through this omission. Finally, the expert opined that the report contained no logical justification for the conclusions and recommendations. Put another way, the analysis proceeded illogically from the four assumptions in the report. For example, even though the report found a number of deficiencies in the masonry construction, including findings that the work did not adhere to the original drawings and that ratios did not meet building code requirements, the analysis concluded that the masonry work was done in accordance with "acceptable standards under engineering inspection." To this extent, the written report deviated from the engineering principles of logic and clear and precise language, and that it be prepared with due care. Based upon the deficiencies cited in this and the previous two findings, it is found that respondent was negligent in the practice of engineering in that he failed to use due care and to have due regard for acceptable standards of engineering principles. 3/ At hearing, respondent explained the scope of his investigation, gave the bases for the assumptions made in the report and recited the manner in which the conclusions and recommendations were drawn from the facts and assumptions. While these were valid and competent explanations, and had previously been orally given to the City, they were not fully incorporated into the written report. Testimony on behalf of respondent by the project architect established that, from an architect's as opposed to an engineer's perspective, he found the report satisfactory and "in keeping with the standards of other reports" given to him by engineers in the community. However, this testimony has not been accorded the weight given to the testimony of petitioner's consultant. Finally, the testimony of respondent's two engineering experts simply confirmed the fact that no specific written standards exist as to the content of engineering reports, and that in addition to the written report, it is a common practice for an engineer to supplement that report with oral advice to his client. Mitigation In mitigation, it must be noted that respondent's competence as a professional engineer is not in issue. Further, the City was completely satisfied with the report and encountered no problems during the subsequent completion of the building. Indeed, at hearing two city officials expressed satisfaction with respondent's work and the project architect found the report to be satisfactory. Moreover, there were no damages suffered by the client, and the public was not endangered by respondent's misfeasance. Respondent's only fault was in not reducing to writing the additional detail and explanation which he gave to city officials in face to face meetings. Finally, during respondent's twenty-five year career as a professional engineer, he has never been subjected to disciplinary action.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating Subsection 471.033(1)(g), Florida Statutes (1989) and that he be given a private reprimand. RECOMMENDED this 3rd day of April, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of April, 1991.
