Findings Of Fact Mr. George O'Green hired Len Berlin, who he thought was a registered architect, to prepare plans for a commercial building he desired to erect at Naples, Florida. After the plans had been completed O'Green learned that Berlin was not registered and the county would not accept his plans. Berlin thereafter presented O'Green with the same plans containing the seal and signature of Respondent. In his answer to the Administrative Complaint Respondent admitted that he checked, corrected, and signed the plans brought to him by O'Green so O'Green could get his building permit, although the plans were not prepared by Respondent or prepared under his supervision or control. O'Green testified that he did not meet Respondent until after the permit had been obtained. Martin Waxman, a draftsman, is a member of the First Assembly of God Church in Ft. Myers and volunteered to prepare certain plans as a contribution to the church for the proposed addition to the church. Waxman prepared Site Plan, Foundation Plan, Elevations, kitchen cabinet elevations and three wall sections. Waxman had no connection with Kimball and after preparing the plans be gave them to the pastor of the church. Thereafter Kimball, after checking the plans and making some minor changes, placed his seal and signature on these plans. In his testimony given before the Board (Exhibit 8) Respondent admitted that the structural plans for Pointe South Condominiums signed by him had been prepared by a draftsman who contacted Respondent to get his seal and signature on the plans, and that he was not contacted directly by the owners of the building. He further admitted that the foundation plans were done by a structural engineer not registered in Florida since he did not consider himself fully qualified in this field. However, these plans all contained Kimball's seal and signature. Respondent obtained his degree in electrical engineering and worked for a power company for 17 years before going into business for himself in 1968. He has had no training in structural design but has acquired certain experience erecting small waste treatment plants and two-story dwellings. He is familiar with various engineering manuals which contain tables used by engineers in determining design criteria for various structures. The Pointe South Condominium is a precast concrete masonry six-story structure containing 6500 square feet per floor with reinforced masonry bearing walls. The plans did not contain roof construction detail, provide design load for which the roof was to be designed, or indicate horizontal loads for which the roof was to be designed. Similarly the plans for the precast floor construction was lacking information on design requirements in that horizontal load requirements were not shown. Of more serious import in this building is the foundation details which show foundation to be less than 50 percent adequate. The gravity loads alone amount to more than the foundation was designed for and a safety factor of 2.5 to 4 is normally used in this type structure. The design plans for the church addition were also inadequate. There the second floor is supported by steel joists 4 feet apart without any bridging to increase the stability. The spacing of these joists is such that additional details are required on the plans approved by Respondent. Although designated as classroom on the plan it is large enough for an auxiliary assembly area and the plans do not provide adequate strength for this purpose, thus creating a hazardous condition. The roof design is not complete as to detail in the same manner as noted above for the condominium. A canopy attached to the building wall covering a walkway is inadequately supported by the 4" x 3/8" lag bolts provided on the plans to secure this canopy. Nothing in the canopy design was provided to resist distortion of the canopy in high winds. The additional stresses thereby created results in a hazardous situation. With respect to Charge III that Respondent was performing work constituting the practice of architecture, one witness opined that the plans for the Pointe South Condominium involved the practice of architecture as architects have traditionally performed this type of work. This witness considered it unauthorized practice of architecture for any engineer to design, plan, and build any church, multiple family housing or multiple storage structure. Respondent acknowledges that approximately 25 percent of the design of this condominium involves architecture but considers this as incidental to the major structural design that is performed by engineers.
The Issue Whether that portion of Respondent's leasing manual, HRSM 70-1, which defines the term "dry and measurable" should be declared an invalid exercise of legislatively delegated authority?
Findings Of Fact Based on the record evidence, the following Findings of Fact are made: Earlier this year, Respondent issued an Invitation to Bid for Lease No. 590: 2286 (hereinafter referred to as the "ITB"). The first page of the ITB contained the Bid Advertisement, which read as follows: The State of Florida, Department of Health and Rehabilitative Services is seeking an existing facility in Dade County to lease for use as office space containing approximately 30,086 net rentable square feet. The space proposed must be an office environment. Converted factories/warehouses in industrial areas are not acceptable. The facility shall be located within the following boundaries: North By S.W. 8th Street, South By S.W. 88th Street, East By S.W. 37th Avenue, Southeast By South Dixie Highway, and West By S.W. 87th Avenue. Any facility located on a parcel of land which abuts any of the street boundaries is consider[ed] within the boundaries. Occupancy date of 8/01/91. Desire a Ten (10) year lease with three (3)- two (2) year renewal options. Information and specifications may be obtained from Mr. Philip Davis, Facilities Services Manager, 401 N.W. 2nd Avenue, Suite S721, Miami, Florida 3312, (305) 377-5710. Please reference lease number 590: 2286. Program requirements will be discussed at a pre-proposal conference to be held at 10:00 a.m. on 4/22/91 at 401 N.W. 2nd Avenue, Suite S721 Miami, Florida 33128. Bid opening date will be on 5/30/91 at 10:00 a.m. at the above mentioned address. Minority business enterprises are encouraged to attend the pre-proposal conference and participate in the bid process.The Florida Department of Health and Rehabilitative Services reserves the right to reject any and allbids and award to the bid judged to be in the best interest of the state. The ITB contained the definitions of various terms used therein. Among the terms defined were "dry and measurable" and "existing building." "Dry and measurable" was defined as follows: These are essential characteristics to describe "existing" proposed space. To be considered as "dry and measurable" the proposed space must be enclosed with finished roof and exterior walls in place. Interior floors need not be completed. Exterior windows and doors need not be installed. The proposed area is not required to be completed. These characteristics conform to standard lessor construction practices. This definition is identical to the definition of this term found on page 1-5 of Respondent's leasing manual, HRSM 70-1. 2/ "Existing building" was defined as follows: To be considered as existing the entire space being bid must be dry and capable of being physically measured to determine net rentable square footage. at the time of bid submittal. Attached to the ITB and incorporated therein was a document entitled "Standard Method of Space Measurement." It read as follows: The purpose of this standard is to permit communication and computation on a clear and understandable basis. Another important purpose is to allow comparison of values on the basis of a generally agreed upon unit of measurement (net square footage). It should also be noted that this standard can and should be used in measuring office space in old as well as new buildings, leased office space as well as State-owned office space. It is applicable to any architectural design or type of construction because it is based on the premise that the area being measured is that which the agency may occupy and use for its furnishings and its people. This standard method of measuring office space measures only occupiable space, undistorted by variances in design from one building to another. It measures the area of office building that actually has usable (rental) value and, therefore, as a standard can be used by all parties with confidence and a clear understanding of what is being measured. Area Measurement in office buildings is based in all cases upon the typical floor plans, and barring structural changes which affect materially the typical floor, such measurements stand for the life of the building, regardless of readjustments incident to agency layouts. All usable (rentable) office space, private sector leased, State-owned, or other publicly owned shall be computed by: Measuring to the inside finish of permanent outer building walls to the office side of corridors and/or other permanent partitions, and to the center of partitions that separate the premises from adjoining usable areas. This usable (rentable) area shall EXCLUDE: bathrooms, public corridors, stairs, elevator shafts, flues, pipe shafts, vertical ducts, air-conditioning rooms, fan rooms, janitor closets, electrical closets, telephone equipment rooms, - - and such other rooms not actually available to the tenant for his furnishings and personnel - - and their enclosing walls. No deductions shall be made for columns and projections structurally necessary to the building. The attached typical floor plan illustrates the application of this standard. 3/ Petitioners submitted a bid in response to the ITB. 4/ In their bid they proposed to lease to Respondent space on the first and second floors of a building located at 8500 S.W. 8th Street in Miami, Florida. The space offered by Petitioners is currently occupied. At the time of bid submittal, all of the proposed space on the second floor was "dry and measurable," as that term is defined in the ITB. It encompassed a total of 26,540 square feet. At the time of bid submittal, only a portion of the proposed space on the first floor, amounting to 4,400 square feet, was "dry and measurable," as that term is defined in the ITB, inasmuch as the proposed space on this floor included a breezeway area that did not have either a front or back exterior wall in place. 5/ Subsequent to the submission and opening of bids, Petitioners enclosed this breezeway area by erecting exterior walls. Accordingly, the entire space offered by Petitioners was not "dry and measurable" at the time of bid submittal as required by the ITB. Bids were opened by Respondent on May 30, 1991. By letter dated June 18, 1991, Respondent notified Petitioners that their bid had been deemed non-responsive. The letter read as follows: The bid you submitted for lease No. 590: 2286 has been determined to be non-responsive because the proposed space is not dry and measurable. The breezeway area proposed on the ground level of your premises at 8500 S.W. 8 Street, Miami, does not have exterior walls in place. The invitation to bid on lease No. 590: 2286 provides on page 2: "Dry and Measurable- These are essential characteristics to describe "existing" proposed space. To be considered as "dry and measurable," the proposed space must be enclosed with finished roof and exterior walls in place. You have the right to file a protest. The protest must be filed in accordance with S.120.53(5), Florida Statutes and Chapter 10-13.11 Florida Administrative Code. Failure to file a protest within the time prescribed in S.120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes. To comply with the referenced statute, a written notice of intent to protest must be filed with the contact person listed on the Invitation to Bid for lease No. 590: 2286 within 72 hours after receipt of this notice. Within ten calendar days after the notice of protest is filed, a formal written protest and protest bond must be filed with the contact person. The bond must be payable to the department in an amount equal to one percent of the total lease payments over the term of the lease or $5,000, whichever is less. This determination was the product of, not any unlawful bias or prejudice against Petitioners, but rather the honest exercise of the agency's discretion. Petitioners subsequently filed a protest of this preliminary determination to find their bid non-responsive. They also filed a rule challenge petition alleging that Respondent's leasing manual, HRSM 70-1, to the extent that it purports to define the term "dry and measurable, represents an invalid exercise of legislatively delegated authority. It is this petition that is the subject of the instant proceeding.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Charles F. Geisler, was and is a licensed architect in Florida holding license NO. AR 00006750, and the Petitioner, Board of Architecture, is the state agency responsible for regulating the practice of architecture in this state. Respondent has been engaged in the practice of architecture primarily in the design of residential and commercial structures within Sarasota County continuously since 1976. Over the past several years, he has worked on occasion, with Howard T. Bertram, also an architect, with whom he had worked for several years in an architectural firm in Sarasota. During that period, they worked together on several residential projects. Mr. Bertram was not registered as an architect at the time the project in question was designed. Under Florida law and the provisions of Sarasota's building code, any individual, not necessarily an architect, may legitimately prepare plans for a single family residence. Mr. Bertram was contacted by Chester Kuttner, a Chicago real estate developer who also has worked in Florida, to design a single family residence for him on Ringling Point in Sarasota. Because this site is located in a coastal high hazard area, and a V-20 zone, Regulations promulgated by the United States Federal Emergency Management Agency, (FEMA), established certain requirements to include the requirement that a residence to be constructed in the V-20 zone must be designed by a registered architect; must have an elevation no less than 16 feet above sea level; and must be designed and build so as to resist a certain wind velocity. All this was explained to Mr. Kuttner by Mr. Bertram. Nonetheless, Mr. Kuttner desired that Mr. Bertram design his home. Bertram agreed and began the development of the design concept, but once the project reached the point where working and construction drawings were necessary, and the involvement or a registered architect was required, Mr. Bertram proposed to Kuttner that Respondent be employed to work with him to insure that all FEMA and other requirements were met. Mr. Kuttner agreed. Respondent thereafter submitted a set of plans to the Sarasota building office for review as a prerequisite to the issuance of a building permit. The initial set of plans submitted in September was rejected because of the failure of the plan to meet requirements regarding fill, slab, and the elevation of the swimming pool. None of the original objections had any relationship to those areas in issue here. A second set of plans was submitted by Respondent in November, and approved by the city. These plans bore his seal as architect, and it was his responsibility to determine whether the plans were in compliance with FEMA and State requirements. Though the city officials reviewed the plans, they did not do a complete structural analysis to see if the plans complied with FEMA structural requirements. The plans did, however, comply with local elevation and zoning requirements. According to Mr. Hewes, the building official, the house involved here is similar to many built in coastal areas. It is an elevated house with the bottom portion open, and the living quarters up and over the open parking area below. Because of FEMA criteria, the lower level could not be used for habitation at this location. Respondent admits to sealing both the original and modified plans for the Kuttner house. With regard to the original plans, he prepared sheets 5-1 and 5-2, the structural plans, but merely reviewed sheets 1 - 7 which had previously been prepared by Mr. Bertram. In that regard, Respondent and Bertram went over the plans together and discussed them, and in light of their review, the matter seemed to be appropriate to Respondent who, admittedly, did no calculations. As to the second set of plans, again Respondent drafted sheets 5-1 and 5-2, dealing with the structure, which he revised from the September plans to meet the changed conditions. This applies to the other pages as well, which he checked only as to the required changes. Respondent knew these plans were to be used to get a building permit, and he was aware that the building was to be constructed in a V-20 zone, with an elevation of 16 feet. The original plan for the Kuttner home called for the use of fill to support a concrete slab which would form the floor of the upper habitation area. When, after consultation with governmental authorities, it was decided to remove the fill, Respondent recognized he had to redesign the structure as a wooden frame with truss joists. The use of pilings, as called for in the original plan, remained as a part of the second set. The structure was built as planned. Respondent was present when the piles were driven to insure they were put in the right place; he was on the scene when the steel beams were put in; and came out again to solve a problem regarding plumbing vents and air conditioning ducts. He indicates there was an upgrade in the steel beam size in the floor beam supporting the master bedroom area as a matter of economic convenience to the supplier. These larger beams were installed at no additional cost as was an additional roof beam. "Detail" drawings were provided in some areas, especially the footing areas, (detail A on S-I; detail B on S-1; and base plate and anchor bolt on S-2; and frame sections on S-2). There were no details as to stair framing. Wall sections are detailed in the first 7 sheets, and details of the roof tiedowns are show there as well. Respondent provided for lateral wind loads through a device which called for this load to be transferred to the outer walls. Petitioner's expert claims this was improperly done. The plans do not show plumbing details, but there is no requirement for plumbing details to be shown in single family residence drawings. The drawings must show the location of the structure on the property foundation, floor plans, elevations, and a typical wall section. Requirements in the electrical area include only the locations of outlets and switches. Respondent admits to being compensated by Mr. Kuttner for the services rendered in the design and construction of the building. The comment appearing on the first page of the plans regarding the seal being applied at no charge as a political statement was made as a result of the Respondent's philosophical disagreement with the short-lived Florida sales tax on services. He claims his comment was true: that no charge was imposed for the placement of the seal, but he readily admits he was compensated for his architectural services. This seal comment apparently prompted inquiry by the Board and colored the thinking of several Board witnesses who believed Respondent "sold" his seal to an unlicensed architect. This is not true, however. Respondent performed bona fide architectural services and his seal was properly utilized. Mr. Bertram, who at the time he designed the Kuttner residence, was not registered as an architect in Florida, received his license in January, 1988. His participation in the Kuttner project included development of the design concept, and the accomplishment of the working drawings on which he brought in Respondent as a licensed architect to work with him on the FEMA zone portions. According to Mr. Bertram, he and Respondent met many times on the project. Mr. Bertram's testimony fundamentally supports and confirms in major detail that of the Respondent. He points out that the residence as ultimately constructed, was little changed from the concept design on the September plans. The major difference was the removal of fill and the structural concrete slab as a base for the living area portion of the house, and the substitution of truss joists therefor. What is incontrovertible is that the house, as designed by Bertram and the Respondent, is still on the site where it was constructed, and is occupied by the original owner who is quite satisfied with it. According to both Bertram and Mr. Kuttner, no material changes have been made since it was completed. The project was not, however, so well thought of by Mr. Philip V. Scalera, an architect licensed in both Florida and Georgia, and a consultant for the Board, whose primary architectural practice deals with commercial structures. He does, however, have some experience in residential design, and in his opinion, the subject building, multistory in design and constructed of steel beams on pilings is no different, structurally, from a commercial building. Mr. Scalera, at the request of the Board, reviewed the drawings encompassed in both sets of plans submitted to the Sarasota building office. According to the plans, the structure was to be a wood frame structure above a slab. The first set of drawings indicated the property was to be a conventional slab on grade construction. The structural drawings show no location or information, however, concerning the pilings, and in Mr. Scalera's opinion, it would not be easy to understand the type, location, or load bearing capability of the pilings based on these drawings. He feels this type of structure should be designed for uplift and load bearing. In his opinion, therefore, the first set of drawings regarding the foundation are inadequate. However, the first set of plans were withdrawn and not utilized by the contractor for the construction of the project. It is noted, however, that the first and second set of plans are quite similar, and in that regard, Mr. Scalera points out, as to the second set, his comments regarding the foundation support are not changed. In his opinion, there is insufficient information provided as to the capability of the piling. Other defects found by Mr. Scalera in the second set of plans included: The "details" for retaining walls were non existent. Mr. Scalera feels that in this case, such details were required due to the critical nature of the walls, which included the support and retention of the structure. The "details" for the superstructure were inadequate. The "columns to footage anchorage" are critical and must be evaluated. This can be done only through the use of "details." Here, there is only one "detail" with no calculations by engineers shown and, in Scalera's opinion, this is insufficient. The "detail" regarding the "moment connection", drag bracing, or a means to prevent distortion of the structure by horizontal wind force is absent. There is a "diaphragm" method which can be used for this which is a panel to absorb pressure, and an outer wall, (shear wall). Here, however, no shear wall is shown. Only a glass wall is indicated and glass walls are not capable of resisting lateral wind pressure. On a steel building, with a steel frame, as here, steel or masonry would have been the natural material to resist the wind force, and there is no indication that this is provided. The "details" for stair landings and wall sections are needed but not provided. S-1 on the second set of plans shows joists which bear on the beam which has no support. S-2 shows a stair opening, but the detailing contained in the drawings does not show sufficient detail to allow reviewing officials to oversee construction. The "tie-down" anchors the roof joist to the wall plate and is used to prevent the wind from lifting the roof off the structure. The instant plans call for an overhang of 9 feet, and the uplift force for such an overhang is such as would cause the hurricane clips called for in Respondent's plans to fail. Scalera believes that the fact that the house is still standing means nothing. The design should be sufficient to meet the requirements of an unusual occurrence, in this case, a 50 to 100 year hurricane, and since the construction of this residence, no such winds have been experienced. The lateral bracing used by Respondent is insufficient. The only lateral bracing called for in this plan is made of plywood sheeting on one side. More detail should be shown, with specifications which were absent. Floor beams were, in the opinion of Mr. Scalera, inadequate in size. The glass type, thickness, and means of support called for in the plans are not detailed. In the absence of appropriate detail, neither Mr. Scalera nor the building officials would be able to determine whether the plans came up to standards. The plans do not appear to comply with the requirements for buildings in a V-20 zone, (16 feet elevation), in that: They are on compacted fill contra to the code, (changed in the second plans) The sewage and waste water control is not designed through the use of plumbing drawings, and The structural integrity of the building appears to be beyond the architect's responsibility area. Many structural designs for moment connections and joints are improper or uncalculated. In Scalera's opinion,; these designs should have been done by an engineer, not an architect. Turning to the second, (November) set of plans, Mr. Scalera also believes these are not of a sufficiently high standard to inform the user properly. The documents do not clearly and accurately identify the design of all segments to which they relate. The drawings have lent themselves to a lack of continuity. The plans appear to be detrimental to the client because the project, based on these plans, could not be bid accurately and the actual cost would exceed competitive bidding by a large margin. They are also detrimental to the public at large because the building has the definite potential for failure under stress conditions. Taken together, in Mr. Scalera's opinion, the Respondent has not conformed to the standards for the practice of architecture in Florida, and has been negligent. He believes the structural components are not incidental to the plans but are of paramount importance, and, in his opinion, Respondent was not competent to design the structural components used herein. Mr. Geisler and Mr. Bertram both pointed out that they had worked with the contractor selected to build the structure in issue here and he was familiar with their way of doing things which would lead to a better job even if not all detail was contained in the plans. Mr. Scalera discounts that contention, stating that the fact that the architect had worked with a particular contractor previously would not justify his putting less detail in his plans than would be required in plans to be used by a contractor not familiar with the architect. This is accepted and so found. Many of Mr. Scalera's conclusions were supported by the testimony of Mr. Power, a licensed structural engineer, who described the Kuttner residence as "a very unusual steel skeleton and wood constructed building." Mr. Power examined the property and the drawings and found the latter to be inadequate to make an evaluation of the superstructure. Nonetheless, he felt the plans were inadequate for several reasons. In less detail than that utilized by Mr. Scalera, he opined that: The details of the superstructure as to wind loads were inadequate. The column to footing anchorage details were less than as he would wish, but he was unable to form an opinion as to whether they were adequate. He did point out, however, that there were no details available on those areas of the project related to resistance to lateral wind loads, and those details are required because wind exerts pressure in the form of lift on the top of the roof; uplift on the bottom of the roof; uplift from under the building; and pressure on the windward side of the building as well as suction on the leeward side. Mr. Power points out that the requirements applicable here indicate that the design must provide for the structure to sustain a 10 foot wall of water driven by 110 mile per hour winds, as well as the impact of the wave and debris pileup on the pilings. Mr. Power also points out that one way of resisting wind load is through duplication, and in his opinion, the detail as to that in these plans is insufficient. With regard to the tie downs, designed to hold the roof to the structure, the detail provided calls for a particular type of commercially produced joinder. Power's calculations indicate that the type of joinder called for in the plans is inadequate in that the clip called for is inadequate to hold the roof under the conditions possible. Another of Mr. Power's concerns deals with the indications for lateral bracing on the outside wall of the mezzanine floor, where he felt the bracing was inadequate, and the failure to provide specifications for such is a defect. Mr. Power also reviewed the plans in regard to the adequacy of the floor beams, and concluded that the floor beam on line 2 from grid line B to D was inadequate under dead and live gravity loads. The beams themselves are not properly braced, and appear grossly inadequate when subjected to lateral wind load. Further, the beam on line B, from 2 to 4, at elevation 26' 3 3/4", and the beam on line B from 6 to 8 at elevation 30" 3 3/4", are inadequate because the are adjacent to openings in the floor. Mr. Power concluded that the plans do not comply with the FEMA requirements for a zone V-20 location because they fail to provide the required safety called for in the building codes. The steel columns which are 6 x 9 would be insufficient even if details for the moment connection were provided, and they were not. The provision of the other beam, which is much stronger, as was claimed by Mr. Geisler in his testimony, would make it safer. Nonetheless, he believes the design in these plans, as they relate to beams and columns, would be inadequate to withstand the code specified wind loads in either direction. In substance, Mr. Power is of the opinion that Respondent's initial and revised plans here are not of sufficiently high standard to inform the users of the requirements intended; they do not clearly and accurately indicate the design of all essential parts of the work to which they refer; and, as drawn, may well be detrimental to the client and the public at large. According to Mr. Power, when the Respondent signed and sealed these plans, he assumed responsibilities for them as submitted, and could not rely on any supplier or contractor to make changes which would rectify an otherwise unacceptable situation. Here, Mr. Power believes that the standard of practice, as it relates to structural design only, as contained in the plans in issue, was not met by the Respondent. Admittedly, this analysis is based upon review of the plans only, and if he could see the specifics of the project, it might change his opinion on the adequacy and safety of the superstructure. It would, however, not change his opinion as to the adequacy of the plans. Respondent points out that his plans had a note requiring shop drawings and the steel joist and concrete reinforcing people submitted them. They were reviewed by Respondent and he feels that they complied with his instructions and with the standards of the practice in Florida. Mr. Power admits that shop drawings are very common and almost all buildings are built through the use of these drawings in addition to the architect's plans. Shop drawings are used to establish dimensions so that prefabricated elements can be constructed, and to indicate to the designer that what is on his drawings was understood. Shop drawings do not bear the seal of the professional, and it must not be overlooked or forgotten that the responsibility in architecture lies with the architect's seal, not the shop drawings. In Mr. Power's opinion, what the Respondent accomplished here was not at all consistent with what Power has seen as acceptable practice in the profession. In defense of his plans, Respondent pointed out that he has designed several properties for FEMA locations in Florida in both the V zone and the A zone. He has worked with structural steel components on at least two occasions, and in his opinion, his design of the superstructure on the Kuttner house complied with FEMA requirements. Respondent also claims his plans provided for column to footage anchorage at S-2. All steel joists were to be fully welded to develop maximum moment resistance and to create a rigid frame. The plywall insert panels were designed to carry a wind load sufficient to resist deformation in their plane, and the floor joists were designed to resist wind deformation in the horizontal plane. According to Respondent, an expert in soils analysis did borings of the soil on the site and recommended the type and size of the footings, and here, Respondent called for the use of a 12 inch instead of a 10 inch piling. Both the Respondent and Mr. Kuttner are of the opinion that the complaint in this case was initiated by one of Mr. Kuttner's neighbors, an architect himself, who wanted to design the Kuttner residence. When Kuttner refused, this neighbor allegedly took umbrage and resisted the project down the line. When Respondent designed the superstructure, he claims to have considered the wind effect as outlined by Mr. Power, but did not specify the thickness of glass to be used since it was not required. Where the plans call for welding steel joints at S-2, this appears to conform to AISE standard practice. The plywood walls were to serve as a diaphragm to counter wind effect. The framing and connections for those is found in the plans at PA-4. Bolts at 48 inches on center at the bottom plane are called for with studdings to be tied in there and plywood attached in accordance with the undetailed standard nailing pattern set out in the building code and known to all certified contractors. He admits that his plans did not specify a nailing pattern at the truss joinders, but he claims they did not have to. This is not necessarily so if the plywood is being used to address lateral wind load. Admitting that the requirements for nailing patterns is incorporated into the building code which governs all construction and compliance with the code is required by all contractors, Mr. Power nonetheless feels that the nailing pattern is dependent upon the load to be supported and that determination should not be left up to the contractor, but should be specified by the architect in the plans. This would seem to be a logical and supportable position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that by Final Order of the Board of Architecture, the Respondent, Charles F. Geisler, be reprimanded, be assessed a total administrative fine of $1,000.00, and be placed on probation for a period of two years under such terms and conditions as may be prescribed by the Board. RECOMMENDED this 14th day of August, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Aministrative 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 14th day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6934 The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. & 4. Accepted and incorporated herein. Accepted and, as appropriate, incorporated herein. Accepted and incorporated herein. -11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13.-15. Accepted and incorporated herein. 16. Accepted as it states Mr. Bertram prepared all with the Exception of S-1 and S-2, but rejected as it implies Respondent did not work on the other with Bertram or assume responsibility for his work. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein. - 7. Accepted and incorporated herein. 8.- 10. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected in that the first plans did not comply with stated requirements. Accepted as to Respondent's contentions without conceding the detail, specifications, and requirements were adequate. Rejected. Scalera's objections went to the professional quality of Respondent's work. As an expert, his testimony is accorded same weight. Irrelevant. & 20. Accepted. Accepted. Finding for Respondent on this point. Not a Finding of Fact but merely a statement of the allegation. Respondent's courses in the area of structural engineering appear to be no more than a normal architectural student takes. This issue was resolved against the Respondent. Accepted but not controlling in light of the evidence on the effectiveness and weight of shop drawings. Accepted but irrelevant to the issue of quality of quality of performance. See 22. Rejected. Accepted and treated herein. Rejected. 30.- 33. Accepted and incorporated herein. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 730 S. Sterling Street, Suite 201 Tampa, Florida 33609 Stanley Marabel, Esquire 1800 Second Street, Suite 715 Sarasota, Florida 34236 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patricia Ard Executive Director Board of Architecture 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact At all pertinent times, respondent John G. Wood was a registered real estate broker and a registered general contractor; and respondent Bruno Pais was one of approximately 15 registered real estate salesmen employed by respondent Wood, trading as Wood Realty. At the time of the hearing, approximately 125 people were employed in respondent Wood's construction business, which had built some 3,000 houses. John Wood and Associates, respondent Wood's construction firm, built a house at 903 Wakulla Drive in Winter Haven, Florida, on what had previously been a citrus grove. The house sits on a corner lot and adjoins a heavily travelled state road. In 1975, after the house had been built, respondent Wood learned that the ground underneath the patio near a glass door at the rear of the house had settled. He directed a construction superintendent to reinforce the footing underneath the house and to replace the patio. This repair proved ineffectual, however. In the summer of 1976, respondent Wood engaged Ivan Dewitt King, Jr., a civil engineer and land surveyor with some 30 years' experience, to evaluate the house at 903 Wakulla Drive and to advise what should be done to repair the house. Mr. King examined the foundation and dug several test holes. He found that the foundation had deflected downward one-quarter to one-half inch and that the soil was softer where the deflection had occurred than elsewhere. Although the foundation had bowed, it had not cracked. There was no sinkhole in the area. The softness of the soil might have been the result of a tree's having been uprooted. Mr. King recommended excavating under the existing foundation, pouring concrete to make a new, broader footing underneath the then-existing footing and, after the new footing had cured, placing jacks on it to jack up the original footing and hold it there until the space between the old and new footings was filled with concrete. Mr. King suggested a "twenty- four inch footer to go underneath the existing one, (T.56) and advised respondent Wood that taking these steps would solve the problem. In August of 1976, at respondent Wood's instance, Jeffrey N. Riner, who had been in the foundation and concrete business for some ten years, went in and dug out. . below the foundation and put like a three or four foot wide by about fifteen foot long solid concrete pad with steel across both ways coming up and out of it, and then. . took jacks, like twenty- ton jacks, and jacked the foundation and. jacked. . the slab back. . as close as possible to its original. . place, and then poured the concrete back underneath in between this foundation and the original foundation. (T. 65). Mr. Riner testified that, in his opinion, "that part of the house will never go anywhere." (T.65) After this second repair, respondent Wood observed the house and observed "no structural problems" (T.42) "other than minor cracks in the masonry and expansion cracks." (T.41) Originally, respondent Wood had sold this house to Fred Crabill. Shortly before the second repair, respondent Wood took the house back as partial payment for another house he sold Fred Crabill. Some six months after the repair, on February 17, 1977, James D. and Erma C. Anderson signed an agreement to purchase the house. Driving by, Mr. Anderson had noticed the house and had thought about buying it, but decided to do so only after respondent Pais showed him the house. Respondent Pais was aware of the condition of the soil, that the foundation had deflected, and that repairs had been done. He had been given to understand that there was no longer any structural problem with the house. Mr. Anderson asked respondent Pais if there were anything wrong with the house, and respondent Pais assured him that there was nothing wrong. When he first inspected the house, Mr. Anderson observed that the house was dirty, but noticed no other problems. After the Andersons moved in, they found that the bath tub did not drain properly. The drainage problem was not caused by settling of the house or deflection of the foundation, and was known to neither respondent until after the Andersons vacated the premises. After Mr. Anderson removed some sliding glass doors for cleaning, be had difficulty opening and closing the doors. The Andersons began noticing hairline cracks in a rear wall, two or three of which grew over time to be about one-quarter inch wide at their widest points. These cracks reflected minor setting of the soil underneath the house, attributable to vibration caused by nearby traffic. (T.43) The Andersons never made a down payment on the house. Under their agreement with respondents, the sale was to be closed on or before April 3, 1977, with the Andersons making mortgage payments until the closing. The closing was postponed while the Andersons tried to sell other real property so as to be able to apply the proceeds to the house on Wakulla Drive. In September of 1977, respondents threatened to evict the Andersons unless they closed the transaction. On September 11, 1977, the Andersons, who had learned by then of the repairs previously done to the house, and who were worried about the cracks they had seen, moved out. Thereafter, a complaint was filed with petitioner. In November of 1977, respondents caused some re- grouting to be done to repair cracks in the mortar first observed by the Andersons on a rear wall of the house. Subsequently, Lane A. Bohannon took the house in trade for other property. He knew that the foundation had been repaired at the time. Mr. Bohannon, who rents the house, was unaware of any problems with the house's settling or with the operation of the sliding glass doors during the approximately eight months that he had owned the house.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint as against John G. Wood. That petitioner suspend Bruno Pais' registration as a real estate salesman for thirty (30) days. DONE and ENTERED this 26th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Fred Langford, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Stephen Baker, Esquire and John Wood, Jr., Esquire Suite 2, 200 Avenue K, Southeast Winter Haven, Florida 33880
The Issue The issue presented for decision herein is whether or not the Petitioner is eligible to sit for the Professional Engineers examination.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. On December 12, 1983, Petitioner, Craig S. Smith, made application to the Florida Board of Professional Engineers to sit for the April, 1984 professional engineering examination. Respondent, Board of Professional Engineers, reviewed Petitioner's application in their meeting on February 19, 1984 and denied his reguest to sit for the April, 1984 examination. The basis for the denial was that Petitioner failed to qualify under the ten-year provision which requires ten years of experience in engineering pursuant to Chapter 471, Florida Statutes, and Rule chapter 21H, Florida Administrative Code. The Board determined that Petitioner did not satisfy the requisite experience in the areas of engineering, responsible charge and engineering design. Specifically, Respondent determined that Petitioner had 82 months of creditable service toward the 120 month requirement and no experience in the area of engineering design. Petitioner's application reveals that he was employed by Florida Testing and Engineering, Inc., 6784 Northwest 17 Avenue, Ft. Lauderdale, Florida from May, 1971 to May, 1973 in the position of a driller crew chief. His professional duties during that period include the following: subsurface investigations for foundation design; securing and classifying subsurface samples in accordance with standard procedures of ASTM and AASHTO; overall responsibility for drilling operations and sampling equipment (standard penetration tests using either split barrel sampler, shelby tube, hollow stem flight auger, steel casing, drilling mud and rock coring, when required). From May, 1973 to January, 1979, Petitioner was employed by the same employer but held the position of laboratory and field engineering technician. His specific job duties include various construction sampling, testing and inspection as follows: ASPHALT asphaltic design mixes conforming to Florida Department of Transportation and FAA criteria; quantitative extraction of bitumen from bitumen paving mixtures; bulk specific gravity of compacted bituminious mixtures; compressive strength of bituminious mixtures; sampling bituminious paving mixtures; sampling bituminious materials; (o) bituminious mixing plant inspections; coating and stripping of bitumen-aggregate; determining degree of particle coating of bituminous-aggregate mixtures: maximum specific gravity of bituminous paving mixtures; specific gravity of solid pitch and asphalt displacement; determining degree of pavement compaction of bituminous paving mixtures; resistance to plastic flow of bituminous mixtures using marshall apparatus; resistance to deformation and cohesion of bituminous mixtures by means of hveem apparatus. CONCRETE compressive strength of cylindrical concrete specimens; making and curing concrete compressive and flexural strength specimens in the field and laboratory; obtaining and testing drilled cores and sawed beams of concrete; flexural strength of concrete (using simple beam with third point loading); slump of Portland cement concrete; weight per cubic foot, yield, and air content (gravimetric) of concrete; (q) sampling fresh concrete; measuring length of drilled concrete cores; air content of freshly mixed concrete by the pressure method; securing, preparing and testing specimens of lightweight insulating concrete; air content of freshly mixed concrete by the volumetric method; checking approximate strength of hardened concrete by the Swiss hammer method; cement content of hardened Portland cement concrete; specific gravity, absorption and voids in hardened concrete; inspection and testing agencies for concrete materials as used in construction. SOILS investigating and sampling soils and rocks for engineering purposes; dry preparation of disturbed soil and soil aggregate samples for test; particle size analysis of soils; determining the liquid limit of soils; determining the plastic limit and plasticity index of soils; determining the field moisture equivalent of soils; moisture-density relations of soils using a 5.5 lb. rammer and a 12 in. drop; specific gravity of soils; moisture-density relations of soil-cement mixture; cement content of soil cement mixture; wet preparation of disturbed soil samples for test; moisture-density relations of soils using a 10 lb. rammer and an 18 in. drop; density of soil in place by the sand-cone method; the California bearing ratio, the line-rock bearing ratio; unconfined compressive strength of cohesive soil; permeability of granular soils (constant head) one-dimensional consolidation properties of soils; repetitive and nonrepetitive static plate load tests of soils and flexible pavement components, for use in evaluation and design of airport and highway pavements; determination of moisture in soils by means of a calcium carbide gas pressure moisture tester; bearing capacity of soil for static load on spread footings; density and moisture content of soil and soil- aggregate in-place by nuclear methods (shallow depth); classification of soils and soil aggregate mixtures for highway construction purposes; determining the Florida bearing ratio test (Florida Department of Transportation) determining the calcium carbonate content for base course materials (Florida Department of Transportation). AGGREGATES sampling stone, slag, gravel, sand, and stone block for use as highway materials; amount of material finer than 0.075 mm sieve in aggregate; unit weight of aggregate; voids in aggregate for concrete; organic impurities in sands for concrete; sieve analysis of fine and coarse aggregates; mechanical analysis of extracted aggregate; sieve analysis of mineral filler; specific gravity and absorption of fine aggregate; specific gravity and absorption of coarse aggregate; resistance to abrasion of small size coarse aggregate by use of the Los Angeles abrasion machine; soundness of aggregate by use of sodium sulfate or magnesium sulfate; clay lumps and friable particles in aggregates; lightweight pieces in aggregate; surface moisture in fine aggregate; reducing field samples of aggregate to testing size; total moisture content of aggregate by drying. MISCELLANEOUS percent of elongation, yield and tensile strength of steel members; compressive strength of hollow load bearing masonry units; inspection tests, including the inspection of pressure grout to insure proper distribution for foundation design; inspection and testing agencies for reinforced concrete culvert, storm drain and sewer pipe as used in construction; inspection and testing amenies for precast and prestress oiling members; From January of 1979 through January of 1982, Respondent held the position of supervisor for the same employer, Florida Testing and Engineering, Inc. During that period, he was in charge or was otherwise overall responsible for field and laboratory operations, prepared engineering reports, analyses, recommendations and design for various construction projects; Fort Lauderdale-Hollywood International Airport-Resurface Requisition No. 14905 and No. 29019 Fort Lauderdale-Hollywood International Airport- ADAP No. 06-12-0025-10 R/W and T/W Improvements and Resurfacing Fort Lauderdale-Hollywood International Airport - ADAP No. 06-12-0025-11 R/W and T/W Improvements and Resurfacing Key West International Airport - ADAP No. 06-12-0037-08 Fort Lauderdale Executive Airport Project No. 7155 City of Fort Lauderdale Parking Garage Project No. 7071 City of Fort Lauderdale 5 Ash Waste Water Treatment Plant Project No. 7642 From January of 1982 to the present time, Respondent formed his own company and holds the position as President of that firm (Eastcoast Testing and Engineering, Inc., 430 Northwest Flagler Drive, Fort Lauderdale, Florida 33301). Respondent is responsible for all phases of construction materials, testing, analysis, inspections, evaluations, quality control and quality assurance. The laboratory personnel and facilities of Eastcoast Testing and Engineering, Inc. has been inspected by the Cement and Concrete Reference Laboratory at the National Bureau of Standards. It is accredited by the Department of Commerce, National Voluntary Laboratory Accreditation Program for selected test methods of freshly mixed field concrete. Eastcoast was awarded the annual testing contract for the City of Fort Lauderdale during its first year of operation. During his tenure as an employee of Florida Testing and Engineering, Inc., Petitioner planned and implemented testing programs for the purpose of developing design criteria; implemented investigation and testing programs for the purpose of determining the cause of failures; prepared reports documenting material test data; and assisted in the preparation of reports for engineering evaluation under the guidance of a professional engineer. (See Petitioner's Exhibit No. 1.) For Petitioner's experience at Florida Testing during the period 1971 to 1973, Respondent determined that "zero time" was credited for that experience based on the Board's determination that Petitioner's work was more a "technician's job than engineering-related job." (Testimony of Board member William B. Bradley, Tr. page 16.) For Petitioner's experience during the period Nay, 1973 to January, 1979, Respondent allotted fifty percent or 34 of the 68 months experience that Petitioner served in that position. The Board determined that the "in-house testing" would have a lot more association with normal engineering procedures than Petitioner's earlier work. (Tr. 17.) The Board considered the technical testing and reporting thereof that took place in the laboratories was more responsible for engineering and, therefore, creditable as opposed to Petitioner's field work. (Tr. 17-18.) Again, for the period 1979 through 1992, Respondent gave Petitioner 59 percent credit for a total of 18 months of the 3 years in question. For the period 1979 through 1982, the Board determined that Petitioner was not essentially doing anything different but, rather, that he was "in charge of people now; he is preparing engineering reports here which I assume Mr. Winterholler signed." For that service, Petitioner was given credit for 18 of those 36 months. From the period of January, 1982 to the present time, the Board gave Petitioner 199 percent credit because, as President of his own firm, he would be more involved and would have more responsibility for the actions of his testing laboratory and, therefore, entitled to full credit for that time. (Testimony of Bradley at Tr. page 21.) Finally, Mr. Bradley determined that be saw no design engineering in the Petitioner's submissions because designing is "actually putting onto paper what's going to be there." (Tr. page 29.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order finding Petitioner eligible to sit for the next regularly scheduled Professional Engineers examination based on his compliance with the ten (10) year requirement of Subsection 471.013(1)(a)3., Florida Statutes. DONE and ORDERED this 30th day of October, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of October, 1984.
The Issue The issue for determination is whether Respondent, Roland F. Patterson, engaged in the unlicensed practice of contracting in the State of Florida without being duly certified or registered in violation of Chapter 489, Florida Statutes; and secondarily, if Respondent committed that violation, what penalty should be imposed?
Findings Of Fact At all times material to these proceedings, Respondent was not duly registered or certified to engage in the practice of construction contracting in the State of Florida. He was, however, doing business as George E. Patterson & Associates. Respondent proposed to build an addition to Jennie Headen’s residence, located at 1424 Bellshore Circle, Jacksonville, Florida, for a contract price of $22,000. Respondent signed the written proposal, telling Headen that she need not sign as her name was already on the document. Headen issued checks to Respondent; one in the amount of $3,000 and one in the amount of $9,000. Respondent accepted the checks, made out to him, as payments for work in accordance with the draw schedule mentioned in the proposal. Respondent cashed both checks. Respondent proceeded to tear the back porch of Headen’s house down. He ordered trusses for the cathedral roof and some lumber for further construction, all of which was delivered. Respondent started to frame in the addition, but a City of Jacksonville inspector issued a “Stop Work” order due to the flimsy construction and violation by Respondent of building code requirements. Respondent was also issued a Notice and Order to Cease and Desist from Petitioner, the Department of Business and Professional Regulation, for the practice of unlicensed contracting for the work he performed at 1424 Bellshore Circle, Jacksonville, Florida. Total investigative costs in this matter incurred by Petitioner were $534.59, excluding costs associated with any attorney’s time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered: Finding Respondent guilty of having violated Section 489.127(1)(f), Florida Statutes, and imposing as a penalty an administrative fine in the amount of $5,000.00. Requiring Respondent to pay Petitioner’s costs of investigation and prosecution, excluding costs associated with an attorney’s time, in the amount of $534.59. DONE AND ENTERED this 28th day of August, 2007, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2007. COPIES FURNISHED: Roland F. Patterson 1610 West 31 Street Jacksonville, Florida 32209 Joshua B. Moye, Esquire Assistant General Counsel Craig Mangum, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
