Findings Of Fact Petitioner herein, Kristina V. Tignor, took the Professional Engineers Examination for the State of Florida in Orlando on April 9 and 10, 1987. On July 22, 1987 she was advised by the Department of Professional Regulation's Office of Examination Services that she had failed the examination and was given a cummulative score of principles and practice of 69.1 percent. In her initial request for review and reconsideration, Petitioner objected to the points assigned to her solutions for three problems on the test, Numbers 425, 421, and 124. She contended that as a working engineer, certain criteria and assumptions must be made in approaching any engineering problem and, because the portion of the examination in issue is graded subjectively, her answered should be reconsidered and evaluated in that light. At the hearing, Petitioner contested only the grading of questions number 124 and 421, thereby accepting the grade given for question 425. With regard to Question 124, Ms. Tignor was awarded a score of 5 on her solution to this problem. The National Council of Engineering Examiners, in its Standard Scoring Plan Outline awards a "qualified" evaluation to scores from 10 down to 6 on this question. Scores from 5 to 0 are rated, "unqualified." A score of 5 indicates the applicant has failed to demonstrate adequate knowledge in one aspect of one category. Specifically, a rating of 5 in this question indicates that the examinee displayed an inadequate knowledge of weight/volume and concrete mix design. Her computations were displayed and an incomplete or erroneous solution was arrived at which gave a generally unrealistic result. Dr. Bruce A. Suprenant a civil engineer registered in four states and who teaches engineering at the University of South Florida, reviewed the question, the Petitioner's solution, the solution proposed by the examiners, and the grading scheme for this problem and found a number of illogical items in Petitioner's solution which, to him, were difficult to understand. He found several items which had no basis and which were possibly assumed. As to Part a of Petitioner's answer, a mixture of answers, (correction for moisture), which should have been in Part b, was located in Part a. As to density, the value used by Petitioner does not appear to be reasonable based on information provided in the problem. In Dr. Suprenant's opinion, there are at least three approaches to this problem. One is the water/cement ration method. Another is the weight method. The third is the absolute volume method. The water/cement ratio method would be difficult to apply here and neither Petitioner nor the examiners used it. As to the weight method, much the same problem exists. There is insufficient information provided to satisfactorily apply this method and while the examiners did not use it, Petitioner did. Petitioner's answer has a correction for moisture in the absolute volume method on the first page of the solution form at the top. The calculations by Petitioner are assumed information not known, (volume). In addition the correction for moisture in the second part of page one is included on the top of page two. It is not a part of the solution for subpart a and should not be there. Petitioner used 150 pounds per cubic foot for concrete density in her solution and this choice is not explained. Most publications utilized by engineers suggest using tables which were not provided to the examinees and it is, therefore, illogical to assume concrete density with no history for that assumption. Petitioner's answer of 5.41 cubic yards is only slightly off the suggested answer of 5.44 cubic yards but the fact that the answers are close does not justify her assumption. It might well not come so close in other cases. As to Part b of the question calling for the water/cement ratio, the corrections for moisture of fine and coarse aggregate on page one are acceptable. On the second page, a problem arises in when the correction for moisture should decrease. Petitioner got the right factor but applied it in the wrong manner. As a result, her answer to Part b of the examination question is wrong. Her answer was 4.40 as opposed to the correct answer of 4.34. This small degree of error can be attributed to the smallness of the amount in question. Were the amounts greater, the error would be greater. As to part c of the question, which deals with the cement factor in a yard of concrete, Petitioner's approach of dividing sacks of cubic yards is correct, but the cubic yard content was determined from Part a of the question, and Dr. Suprenant does not agree with how she got her solution. He therefore questions her carryover. The standard weight of a sack of concrete is 94 pounds. The individual grading Petitioner's response to Question 124 indicates she displayed inadequate knowledge and reached a solution which gives "unrealistic results." Dr. Suprenant agrees, contending that Petitioner's performance in regard to this question indicates inadequate knowledge of weight/volume relationship. She made inadequate assumptions in formulating her answer to the question. The fact that in this problem she arrived at a solution close to the correct one does not indicate that in other problems, she would achieve the same closeness using the same procedure. In his opinion, Petitioner showed some confusion regarding the basis for solving this problem and Dr. Suprenant believes that a grade of 5 as awarded by the examiner is correct. Petitioner questioned the fact that the various technical weights and volumes, such as 94 pounds in a sack of concrete, 8.33 pounds for a gallon of water, and 27 cubic feet in a cubic yard do not appear in the problem statement. This, in the opinion of Dr. Suprenant, compounds the gravity of Petitioner's deficiency. They are routine "givens" generally accepted in the practice by engineers and it would be difficult to assume that anyone familiar with the practice of engineering would use different "givens" for these specifics. Petitioner's employer, Mr. Bishop, himself a registered civil engineer in Florida since 1958, also reviewed Petitioner's solution to Question 124. He admits that on the first page of the answer sheet, Petitioner began solving the problem in an inappropriate way. Her calculations for moisture content were correct, however. On the second paged the correction factor was put in with the wrong sign and the aggregate was given the wrong factor. As a result, the answer was off. In his practice, however, the error committed by Petitioner in these regards is both minimal and acceptable. Her choice of 150 pounds per square foot is reasonable and produced a close result, and while it is true that if the project were of a greater scale, the error might be significant for a test question, as here, the error, in his opinion, is insignificant. He feels much the same way regarding the error in Part c of the examination question. While the factors used by petitioner were wrong, the process used was correct and the answer was not unreasonably incorrect for a test solution. In an examination situation, the calculations are not being done on a continuous basis, and he feels the grade of 5 awarded is unduly harsh since the error was numerical rather than operational. In his opinion, a more reasonable grade would have been a 6 or 7. Petitioner began her solution to this problem by using one similar to that used by the examiners in their publications. Shortly, however, she realized she would not get the answer she needed by doing so and abandoned her solution. She forgot to cross it out, however, and now recognizes she should have done so. She thereafter began to accomplish a series of new calculations on the first page of the answer sheet but did not necessarily utilize that data for her solution to Part a. She admits she made an error in calculation for moisture on the second page. In that calculation, she used the study manual and admits now that she should have cited the figure she used. As to Parts b and c, her use of some figures from Part a may have thrown her answer off somewhat. However, the 5 awarded her, indicating her solution was unrealistic, is, in her opinion unfair as she considers her answer to be quite realistic. The problem did not state what solution method to use and she feels her use of givens from recognized manuals such as the 150 pounds, should not be held against her. 94 pounds for a sack of cement used by the grader was also not given and her use of other accepted numbers should not, she contends, be held against her. Petitioner believes a grade of 7 would more accurately describe the quality of her answer. A 7 means that the examinee obtained an appropriate solution but chose a less than optimum approach. The solution is, therefore, awkward but nonetheless resonable. Ms. Tignor believes that while her approach may have been awkward, she achieved reasonable solution demonstrated by the fact that it was only slightly off the correct figure. Therefore, she believes a grade of 6 would be appropriate. This examination was an open book examination and Petitioner had her manuals with her. She could have easily determined the appropriate weights an "givens" from these manuals without choosing those she used. Ms. Tignor's conclusions that her results are realistic are contradicted by the Board's expert. Realistic results are, in engineering practice, not only the figure reached but also the method used in arriving at that figure. Here, though Petitioner's results are close, the approach utilized in arriving at her solution is unrealistic. Her approach showed an inadequate knowledge of weight/volume and calculations. Consequently it is found the grade is valid and was not arbitrarily assigned. According to the Standard Scoring Plan Outline, each score from 10 through 6 has an indispensable criteria that all categories must be satisfied. Since Ms. Tignor's examination response did not satisfy all categories, the best she can be given is a 5 and that award appears to be justified by the evidence presented. Question 421 was a four part drainage problem. Petitioner used as a part of her solution calculations based on a 100 year storm and this was determined by the examiners to be inappropriate. Ms. Tignor was awarded a grade of 8 and contends she was not given appropriate credit. She relates that even Mr. Smith, the Executive Director of the Board of Professional Engineers, advised her she may not have been given full credit for her answer. She was given full credit for Part a but lost two points for part c which included a calculation error to which Petitioner admits. She contends however, it was so minor, only one point should have been deducted. Were Petitioner to receive an additional one point on this question, she would pass the examination which she failed by only one point. However, this issue must be resolved on the basis of lawfully admitted evidence and Mr. Smith's comment, being unsupported hearsay evidence, cannot itself sustain the rasing of the grade. The Standard Scoring Plan Outline for this question reflects that to receive an 8, the examinee must demonstrate that all categories are satisfied, that errors are attributable to misread tables or calculating devices, and that errors would be corrected by routine checking. The results must be reasonable if not correct. For a 9, the examinee must demonstrate that all categories are satisfied; that a correct solution is arrived at but the examinee has been excessively conservative in the choice of working values; and that examinee's presentation is lacking in completeness or equations diagrams or orderly steps in solution, etc. Subqualifications for a 9 indicates that the answer is correct but that the organization of the solution is not logical. One error in calculation in any of the Parts from a to d, which does not affect the other parts of the solution, is acceptable. Mr. Kenneth Weldon, the Assistant State Drainage Engineer for the Department of Transportation, an expert in the area of drainage to which this problem relates, reviewed the question and the Petitioner's answer thereto and would award a grade of 8 to her answer. He found various numerical mathematical errors which led to the wrong solution. In addition, Petitioner made various assumptions that, though supposedly supported, were, he felt, in error through her misinterpretation. In general, none of the actual solutions she arrived at were correct. Specifically, that portion of the problem to determine the cross sectional area of the waterway for establishing normal depth flow was done incorrectly. Because the Petitioner used incorrect equations throughout the problem, the depth flow computed is high. Petitioner did no analysis to determine whether or not any of the several situations relating to flow control were pertinent. Mr. Weldon initially felt Petitioner's answer to the question merited a grade of 6. This means that the examinee knew all the proper steps but failed to interpret some of the criteria properly. He could not award her a grade of 9 which would indicate all categories were satisfied and the solution was correct, if conservative. Petitioner's solutions were incorrect. He subsequently changed his award to an 8, however, on the basis that the Petitioner's errors were attributable to a misread table or calculating device and would be corrected by routine checking. The result was reasonable, though not correct. Mr. Weldon did not like this question even though he believed it appropriate for a one-hour exam. As written, it involves establishing and making judgements beyond what someone minimally competent would be expected to do. It requires materials that are beyond what are normally available to someone taking the exam. However, Petitioner failed to make proper provision to protect herself in a case where the question is inappropriate or incomplete. If she felt something was wrong with the question, she should have clearly stated the assumption she was making to solve the problem. This was her responsibility and she failed to do so. In Mr. Weldon's opinion, Petitioner's answer might merit a grade slightly higher but not significantly higher. His reasoning is that Petitioner misinterpreted the criteria she stated for writing the problem. Her comment that the Department of Transportation uses 100 year storm criteria was incorrect even though that statement is made in outdated Department of Transportation publications. The basis for her answer is not well established or correct, or based on engineering calculations or judgement, and at best he could award no more than an 8.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered affirming the score awarded to Petitioner on questions 124 and 421, respectively, of the Civil Engineering Examination administered to her in April, 1987. RECOMMENDED this 10th day of June, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5110 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner None For the Respondent Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated except for the characterization of several assumptions as guesses. No evidence exists to support such a characterization even though they are incorrect. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Kristina V. Tignor, pro se 2160 North Oval Drive Sarasota, Florida 34239 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director DPR, Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent is, and has been at all times material hereto, a registered roofing contractor in the State of Florida, having been issued license number RC 0039352. Respondent is the qualifying agent for Ken and Rick's Roofing, Inc. of Mami, Florida. On May 16, 1986, Ken and Rick's Roofing, Inc. contracted to repair roof leaks for a Victor Krauthaner of 18441 Northeast 21st Place, North Miami Beach, Florida. The contract, signed by Respondent and Mr. Krauthaner, contained a six (6) month warranty on repairs. The contract price was $215.00. Mr. Krauthaner paid the full amount by a check which was cashed by Respondent. On May 17, 1986, David J. Godfried, an employee of Ken and Rick's Roofing, Inc. was dispatched by Respondent to repair Mr. Krauthaner's roof. Godfried removed tiles from the affected portion of the roof and installed new tar paper. The old tiles could not be re-used and Godfried did not have appropriate tiles in stock, so he left the tar paper exposed and promised Krauthaner that he would return with new tiles within a week. No one from Ken & Rick's Roofing, Inc. returned after May 17, 1986 to replace the tile and Krauthaner began experiencing new leaks. Mr. Krauthaner made repeated attempts by telephone and letter to encourage Ken & Rick's Roofing, Inc. to complete the repairs. Representatives of the company repeatedly assured Krauthaner that someone would respond to repair the leaks, but no one ever did. Mr. Krauthaner repaired the leak himself in June of 1987. Chapter 10 of the Code of Metropolitan Dade County requires that roofing contractors working within the county be either certified by the State of Florida or possess a certificate of competency in roofing issued by the county. Respondent's registered roofing license was suspended by The Construction Industry Licensing Board in March 1985 for failure to pay a fine assessed as the result of a previous disciplinary action. The suspension was in effect at the time Respondent contracted to repair the Krauthaner residence. Respondent does not possess a certificate of competency from Dade County, nor did he possess one at the time the contract was executed. Respondent has been disciplined on three prior occasions by The Construction Industry Licensing Board on January 23, 1984 (DPR Case Number 33028); May 21, 1984 (DPR Case Number 42963); and, June 6, 1985 (DPR Case Number 49942). The complaint in Case Number 42963 alleged that Respondent had exceeded the scope of his license by contracting in Dade County without first meeting local competency requirements.
The Issue Whether Respondent engaged in negligence in the practice of engineering, in violation of section 471.033(1)(g), Florida Statutes (2014), and implementing rules,1/ as alleged in the Administrative Complaint, and, if so, what is the appropriate sanction?
Findings Of Fact The Board is the state entity charged with regulating the practice of engineering, pursuant to chapter 455, Florida Statutes. FEMC provides administrative, investigative, and prosecutorial services to the Board pursuant to section 471.038. At all times material to this case, Mr. Holt was licensed as a professional engineer in the state of Florida, with license number PE 15252. The Board has adopted Responsibility Rules of Professional Engineers (Responsibility Rules). These rules are contained in Florida Administrative Code Chapters 61G15-30 through 61G15-36. Mr. Holt is required to comply with the Responsibility Rules when performing engineering services. On December 3, 2014, FEMC received a complaint filed by Mr. John Farinelli, chief building official for the City of Belle Glade, Florida (City). Mr. Farinelli had reviewed plans for three residential construction projects which had been submitted to the City for general building permits. The engineering plans for each project had been signed, sealed, and dated by Mr. Holt. Mr. Farinelli found what he believed to be numerous errors on the plans, resulting in the complaint against Mr. Holt. After receipt of the complaint, the engineering plans were reviewed by professional engineers retained by FEMC. Mr. Homer A. Ooten, Ph.D., P.E., LEED-AP, reviewed the electrical and mechanical elements of the plans; Mr. Roger L. Jeffery, P.E., LEED-AP, reviewed the structural elements of the plans. Based substantially upon engineering reports prepared by these engineers, an Administrative Complaint against Mr. Holt was filed on or about September 15, 2015. Mr. Holt filed an "Answer to Administrative Complaint" on October 23, 2015. In that pleading, he admitted that: Rule 61G15-30.002(1), Fla. Admin. Code, mandates that Respondent, as the engineer of record for all projects delineated in the Specific Allegations, is professionally responsible for the documents prepared. As such, Respondent is responsible for producing documents that comply with the applicable portions of the Responsibility Rules. In response to other portions of the Administrative Complaint setting forth requirements of the Responsibility Rules concerning electrical systems design, he repeatedly stated "any departures are justified by the specific circumstances of the project in question and the sound professional judgment of the Respondent." In response to specific allegations of material deficiencies in the electrical engineering design documents, Mr. Holt responded that any omissions were "negated by Respondent's reference to the NFPA 70 National Electrical Code 2008." Mr. Holt made numerous similar claims that departures were justified based on circumstances and his professional judgment in response to portions of the complaint setting forth the requirements for mechanical systems design, involving both heating, ventilation, and air conditioning (HVAC) and plumbing elements. He also noted that "Respondent merely designed a hole for a future wall unit." Although Mr. Holt thus accepted responsibility for electrical and mechanical elements of the drawings prior to hearing, arguing that any departures were justified in the exercise of his "professional judgment," he later took a different tack. In testimony at hearing, Mr. Holt maintained that he signed and sealed the documents only as a structural engineer and that he did not therefore assume responsibility for any elements of the drawings constituting electrical or mechanical engineering. On cross-examination, Mr. Holt was evasive when asked who was responsible for the electrical and mechanical elements of the drawings he had sealed: Q. Whose work was it, if it wasn't yours? A. Whose work was it? Q. Yes. A. I don't know for sure. A lot of times we include air conditioning companies, electrical contractors. Depends. Q. Somebody drew the drawings. Did your office draw the drawings? A. What are you getting at? Q. I'm just asking a question. A. What was included or what was drawn? Q. I just want to know -- somebody drew these documents. A. Yes. My draftsmen drew them all up, yes. Q. They were all drawn up in your office? A. In my office? He has his own offices. Okay. Q. They were all drawn up by your draftsmen? A. Yes. Q. And that included the electrical work, mechanical work, and structural work all by your draftsmen? A. The structural input was mine. He drew it, yes. As was ultimately clear from his testimony, Mr. Holt was well aware that no other engineer was responsible for any part of the engineering drawings for the three residential construction projects. Mr. Holt was in responsible charge for the preparing, signing, dating, sealing, and issuing of all three of the engineering plans, whether he prepared them personally or whether they were prepared by his draftsmen. He was the engineer of record for all three projects. As he admitted, he was fully aware that the engineering drawings were submitted under his seal and filed for public record with the City for building permits. He knew that the drawings under his seal would be, and were, reviewed by City officials, not only as to structural elements, but also for electrical and mechanical elements, as the City was required to do. At hearing, in support of his position that he was not responsible for anything on the drawings other than the structural work, Mr. Holt noted that his name and address had appeared under the words "Structural Design Review by:" on the drawings for two of the projects. He added that he also "should have put that on there" for the third set of drawings. The title "Structural Engineer" also appears underneath Mr. Holt's name and address on the third set of drawings. Mr. Holt's signature appears in a different area on all three drawings, followed by the letters "P.E." and Mr. Holt's engineering license number. The references to "Structural Design Review" and "Structural Engineer" on the engineering drawings near his name and address were not sufficient to indicate to a City official or other person reading the drawings that, by use of these, words Mr. Holt intended not to accept responsibility for various elements of the drawings. Under the circumstances of this case--in which the engineering drawings were prepared under Mr. Holt's responsible charge, and he knew that they would be filed for public record to obtain building permits--it is disingenuous for Mr. Holt to attempt to disclaim responsibility because of the language "Structural Design Review by:" or "Structural Engineer." His argument that, at worst, he simply failed to clearly indicate the limits of his responsibility, is completely rejected.2/ As to the structural engineering elements for which Mr. Holt did accept responsibility at hearing, he maintained that any departures from the Responsibility Rules were justified by the specific circumstances of the project in question and his sound professional judgment. Mr. Holt also argued that his general citation to the Florida Building Code (FBC) put the contractor on notice of all of the construction code requirements. Finally, he argued that certain specifications did not need to be included in the engineering drawings if those specifications were commonly known in the county or area where the construction was to take place. The testimony of Mr. Ooten and Mr. Jeffery at hearing convincingly refuted all of Mr. Holt's contentions. First, departures from the Responsibility Rules, even if they are justified by circumstances and the professional judgment of the engineer--which these were not--must be documented. Second, general references to applicable electrical, mechanical, and building codes do not incorporate the entire content of those codes so as to meet the specific documentation requirements of the Responsibility Rules. Third, while Mr. Holt's testimony that specifications for certain construction materials were well known in his area is credited, his argument that this eliminated the requirement to include them on the engineering drawings was completely unsupported by the Responsibility Rules or the FBC, and is rejected. Findings related to the specific allegations in the Administrative Complaint are discussed below. Mr. Holt testified that he did not dispute the opinions of Mr. Ooten as to the electrical and mechanical deficiencies in any of the plans. Betancourt Project On or about July 29, 2014, Mr. Holt signed, sealed, and dated revised engineering drawings for a conversion/renovation project located at 117 Northwest Avenue H Place, Belle Glade, Florida (Betancourt Project). The Betancourt Project drawings included sheets S-1 through S-3. It was clearly and convincingly shown that the electrical engineering design documents for the Betancourt Project are materially deficient as follows: The drawings contain an electrical riser diagram, but no short circuit values and no voltage calculations for the feeders and customer-owned service conductors. If the circuit breakers and the wires are undersized, then the electrical systems can overheat and that affects the safety of the occupants. The panel schedule does not contain the information it should. It has blank spaces that do not indicate whether there are missing circuit breakers. Conductor sizes, insulation types, circuit-interrupting devices, and fault current interrupting capability are omitted. No surge protective devices are shown on the drawings. While Mr. Holt argued at one point that no surge protection was required, Mr. Ooten credibly testified that the Responsibility Rules required it. He also noted that if there had been a justified departure from this requirement, a notation to that effect on the drawings was required, and there was none. The main electrical panel was not located on the plans. The fact that it was shown on the electrical riser diagram is not sufficient. The drawings show no circuitry for outlets, equipment, devices, or smoke detectors. The reference in the panel schedule to "building receptacles" is not sufficient. There is no outdoor receptacle outlet shown at the front and back of the one-family dwelling. There is no 125-volt receptacle outlet shown at an accessible location within 25 feet of HVAC equipment. The drawings do not contain information required by section 107.3.5 of the Florida Building Code-Building (FBC-B), requiring documents to show electrical overcurrent protection and wiring methods and materials. The legend on drawing sheet S-2 has a symbol for a ceiling-mounted light (style by contractor), but the drawings contain no specifications for any fixtures. The drawings show no circuitry for any lighting fixtures on this project. The lighting design drawings contain no energy form or calculated values to demonstrate compliance with the Florida Energy Code for Building Construction. The HVAC engineering design documents for the Betancourt Project show a new wall air conditioning unit, but no size, no voltage, no disconnecting means, and no circuit for the unit. While it was clearly shown that section 2701.1 of the FBC- B requires that electrical equipment shall be designed in accordance with the provisions of the National Fire Protection association (NFPA) 70, the National Electric Code (NEC), it was not clearly shown what provision of the NEC, if any, these omissions from the drawing violated. Section 1901.4 of the FBC requires construction documents to contain the specified compressive strength of concrete and the specified strength or grade of reinforcement. As Mr. Jeffery testified, structural engineering drawings also need to contain detail as to how a piling is anchored to the pile cap, particularly in plans designed, as these were, to withstand a wind sheer of 170 miles per hour. Mr. Jeffery also credibly testified that the overlap of reinforcing steel needed to be a minimum of 18 inches and that one of the bars was shown as 12 inches in total length, with about eight inches embedded into the footing, leaving only four inches of overlap. It was clearly and convincingly shown that the structural engineering design documents for the Betancourt Project are materially deficient as follows: The strength of the concrete and reinforcing steel are missing. There is no detail indicating how the piling is connected to the pile cap. The lap length of the reinforcing steel in the masonry walls is too short. Bullock Project On or about May 19, 2014, Mr. Holt signed, sealed, and dated revised engineering drawings for a residential conversion/renovation project located at 251 Noah Court, Belle Glade, Florida (Bullock Project). The Bullock Project drawings included sheets A-1 through A-3. It was clearly and convincingly shown that the electrical engineering design documents for the Bullock Project are materially deficient as follows: There is an electrical riser diagram, but it contains only one panel and one electrical meter. The drawings contain some conductor sizes, no insulation types, some circuit interrupting devices, and no fault current interrupting capability. No surge protective devices are shown on the drawings, and there is no notation on the drawings indicating any reason for departure from this requirement. One electrical distribution panel is shown for the south unit on Sheet A-1, but no panel is shown for the north unit. No meters are shown. The drawings show no circuitry for outlets, equipment, devices, or smoke detectors. The drawings do not indicate that an outdoor receptacle outlet is to be installed at the front and back of the Bullock Project. The drawings contain partial load computations for the panel schedule on sheet A-1, but they are inadequate to explain the wiring. The calculation is 99 amps, but that is serving into only one panel, which is not an appropriate design. The drawings do not contain information required by the FBC. Section 107.3.5 of the FBC-B requires branch circuitry and separate overcurrent protection for each of the two units, wiring methods and materials, and load calculations. While some information is included, it is incomplete, and some is incorrect. The legend on drawing sheet A-1 has a symbol for a ceiling-mounted light, but the drawings contain no specifications for any lighting fixtures. The drawings show no circuitry for any lighting fixtures for either unit. The lighting design drawings contain no energy form or calculated values to demonstrate compliance with the Florida Energy Code for Building Construction. It was clearly and convincingly shown that the HVAC engineering documents for the Bullock Project are materially deficient as follows: The drawings did not contain adequate information for the City to determine compliance with codes and ordinances. The drawings contain no air conditioning equipment schedules for air handling units and condensing units. The drawings do not contain cooling coil requirements based on sensible heat, latent heat and total heat gains; outside and inside design dry and wet bulb conditions; nor outside (fresh) air make-up conditions. The drawings contain no specifications for heating equipment. The drawings contain no condensate discharge piping layouts. No HVAC ductwork is shown on the drawings. The mechanical drawings do not contain all data required to complete the Florida Energy Code calculations, as required by the chapter 13 of the FBC-B. It was clearly and convincingly shown that the plumbing engineering design documents for the Bullock Project are materially deficient as follows: The drawings contain no plumbing equipment schedules. No potable water isometric diagrams are shown. Total water fixture units for either dwelling unit are not shown on the drawings. One isometric sanitary riser diagram is shown; however, total flow waste fixture units for both dwelling units are not shown on the drawings. No storm riser diagrams or area drainage calculations are shown on the drawings. The drawings contain no sanitary piping layouts, no cold water, no hot water, and no storm drainage piping layouts. Florida Building Code—Plumbing (FBC-P), 2010 Edition, is noted as an applicable plumbing code. However no other codes, design standards, or requirements are shown on the drawings. No specifications for materials for plumbing systems are shown on the drawings. It was clearly and convincingly shown that the structural engineering design documents for the Bullock Project are materially deficient as follows: The strength of materials for the reinforcing steel, grout, and masonry are missing. There is no detail indicating how the piling is to be connected to the grade beam. The engineer of record's engineering requirements for the delegated engineer for the wood roof trusses are missing. The phrase "pre-engineered wood trusses" appears, but no requirements. Morales Project On or about July 16, 2014, Mr. Holt signed, sealed, and dated engineering drawings for a residential extension project located at 1033 Whitaker Road, Belle Glade, Florida (Morales Project). The Morales Project drawings included sheets S-1 and S-2. It was clearly and convincingly shown that the electrical engineering design documents for the Morales Project are materially deficient as follows: The plan view on sheet S-1 shows the existing electric meter is to remain on the new covered patio, with no mention that the contractor needs to raise the height of the weather head so that it is at least eight feet above the roof as required by NEC 230.24. The drawings contain no panel schedules, no circuit interrupting devices, and no fault current interrupting capability. No surge protective devices are shown on the drawings. The drawings show no new panel, no existing panel, and no sizes, except for the addition of one 20-amp breaker. Whether or not a new or existing panel would have adequate physical space or electrical capacity to add the 20-amp breaker is not addressed. The drawings contain no circuitry for loads added by this project, or existing circuitry, and thus are deficient in circuiting all outlets, equipment and devices. NEC 210.52(E)(1) requires that at least one outdoor receptacle outlet be installed at the front and back of a one- family dwelling. No outlet is indicated. The drawings do not contain all information required by the FBC. Section 107.3.5 of the FBC-B requires that documents show electrical wiring, branch circuits, grounding, wiring methods and materials, and load calculations. The information that is provided is inadequate. The drawings contain no information on the performance specifications or number of lamps on the ceiling fans. The drawings show no circuitry for any lighting fixture, and no panel is shown. The design drawings contain no energy form or calculated values to demonstrate compliance with the Florida Energy Code for Building Construction. It was clearly and convincingly shown that the mechanical engineering design (HVAC) documents for the Morales Project are materially deficient in that the HVAC Scope of Work included a toilet exhaust fan for ventilation. No heat was specified, and the exhaust fan size was omitted from the drawings. It was clearly and convincingly shown that the plumbing engineering design documents for the Morales Project are materially deficient as follows: The drawings contain no equipment schedules for all plumbing fixtures, water heater, valves, and accessories. Potable water isometric diagrams and total water fixture units are not shown on the drawings. Total sanitary waste fixture units are not shown on the drawings. No storm riser diagrams or area drainage calculations are shown on the drawings. The drawings contain no piping layouts for cold water, hot water, sanitary, or storm drainage. The drawings acknowledge that FBC-P, 2010 Edition, is applicable to this project, but fail to list other applicable codes and standards. No specifications for materials for plumbing systems are shown on the drawings. It was clearly and convincingly shown that the structural engineering design documents for the Morales Project are materially deficient as follows: The strength of materials for the concrete, reinforcing steel, grout and masonry are missing. There is no reinforcing steel designated for the concrete piles. The lap length of the reinforcing steel in the masonry walls is missing. There is no detail indicating how the piling is connected to the pile cap. The drawings indicate that a 6" x 6" x 16" concrete masonry unit (CMU) block wall is an optional alternative. Contrary to Mr. Holt's argument, the bathroom walls are not interior walls in this design, as they are bounded by a porch, and this size block is inadequate to resist the design wind pressures. Mr. Holt failed to utilize due care in performing in an engineering capacity and failed to have due regard for acceptable standards of engineering principles in the Betancourt, Bullock, and Morales Projects. It was clearly and convincingly shown that Mr. Holt engaged in negligence in the practice of engineering in each project. Prior Discipline Mr. Holt was charged in FEMC Case No. 01-0159 with engaging in negligence in the practice of engineering. In 2002, he was disciplined by the Board in FEMC Case Nos. 0l-0159, 01- 0106, and 01-0170 after a settlement stipulation. Mr. Holt was charged in FEMC Case No. 2005048785 with engaging in negligence in the practice of engineering. In 2006, he was disciplined by the Board in that case after a settlement stipulation. Mr. Holt was charged in FEMC Case No. 2007068131 with engaging in negligence in the practice of engineering. In 2010, he was disciplined by the Board in that case after settlement stipulation. Mr. Holt was charged in FEMC Case No. 2007047569 with engaging in negligence in the practice of engineering. In 2010, he was disciplined by the Board in that case after settlement stipulation.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Board of Professional Engineers: Finding that John D. Holt, P.E., engaged in negligence in the practice of engineering, in violation of section 471.033(1)(g), Florida Statutes, and Florida Administrative Code Rule 61G15- 19.001(4); suspending his professional engineer license for a period of one year, to be reinstated under such conditions and terms, including a period of probation, as the Board finds appropriate; and imposing an administrative fine in the amount of $10,000.00. DONE AND ENTERED this 16th day of March, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2016.
The Issue The issue in this proceeding is whether Respondent's engineering license should be disciplined for alleged violations of Chapter 471, Florida Statutes.
Findings Of Fact Michael V. Carr, P.E. is a licensed professional engineer in the State of Florida, holding license number PE0026675. He has been engaged in the practice of engineering for more than 15 years. Mr. Carr's area of expertise is in civil and structural engineering. He is not experienced in electrical or mechanical engineering. In 1989, Mr. Carr was employed as a full-time engineer and construction project manager by a local development and construction company. He also operated, on a part-time basis, an engineering business. The purpose of his part-time business was to offer engineering services to people who are experienced in the construction industry or are working with someone who is experienced in the construction industry and have to varying degrees developed their own plans. Respondent also would serve as the construction manager on those projects. During 1989, Respondent performed engineering services on four buildings owned by four different owners. All four buildings, involved relatively simple construction. Three of the buildings, Dr. Zummarraga's office, the Raulerson/Liberty National building, and Bay Podiatry Center, were designs comparable to residential structures. The Eleventh Street Office Park, while a larger structure, was a shell building and a simple structure, as well. Respondent was not retained to provide engineering for the construction of the interior of the Eleventh Street Office Park. In regards to all four buildings, the Respondent was not retained to provide plumbing, electrical or mechanical engineering services. Those items were left to the respective trades involved in the construction of the project. The limited plans submitted for the plumbing, electrical and mechanical aspects of the four buildings met the standard of practice in the Bay County area and were sufficiently complete for the various trades to perform its respective part of each project. Moreover, the simplicity of the construction plans for these four buildings meant that standard construction methods are provided in the Standard Building Code and/or are known in the industry. Such standard construction methods include detail on roof systems, spacing and connections, as well as live load requirements. Therefore, not as much detail needed to be provided on the plans for these projects. It was standard engineering practice in the Bay County area not to include such detail if it was adequately covered in the building code. In each instance, the owners of the buildings contacted Respondent to perform limited engineering services and to act as the construction manager on each project. Except for Mr. Raulerson, each owner had, prior to the time Respondent was hired, worked out some rough plans with a person qualified to create such plans and had a general idea of what type of building they wanted. Mr. Raulerson had drafted a fairly complete set of building plans. The goal of each owner of the four projects was to obtain a set of plans from what the owner already had developed which would at least minimally meet the local building code requirements sufficiently to allow a building permit to be issued for the construction project. In each instance, the Respondent's plans were submitted to the local building code enforcement agency which reviewed and accepted the plans. A building permit was issued for each building project. During the construction of each building, Respondent provided engineering inspections on each project. The plans submitted to the Bay County building department were not as-built plans and were never intended to be 100% complete plans since several of the owners had not made final decisions on a number of details such as roof line or plumbing facilities. 1/ Such open-ended plans were justified by the specific circumstances of each case and the professional judgment of Respondent, especially since Respondent acted as the project manager of the construction project. For purposes of clarity the facts and circumstances surrounding each building and any violations of Chapter 471, Florida Statutes, in regards to each building will be outlined individually. No alleged violations of Chapter 471, Florida Statutes, were established by the evidence unless it is specifically noted below. Zummarraga Building The plans for the Zummarraga building were signed and sealed by Respondent on October 24, 1989. Dr. Zummarraga had contacted Rich Koehnemann of Koehnemann Construction Company to build an office building for him. Mr. Koehnemann sent the doctor to Jeff Robinson, a draftsman in the Bay County area, to work up a draft of the office plans the doctor desired. The doctor or Mr. Koehnemann gave Mr. Robinson a rough sketch of the office building. Mr. Robinson informed the doctor that a structural engineer would have to be involved since the County would require the plans to have the signature and seal of an architect or engineer in order to obtain a building permit. At that point, Respondent was retained to help develop a set of plans for Dr. Zummarraga. Mr. Carr was hired to draft plans for an office building. He was not hired by Dr. Zummarraga to design a building for a specific site. Therefore, no substantial site information, site work, grading or contouring details were provided on the plans for the Zummarraga project. By passing drafts of plans back and fort, a set of plans was devised by Mr. Robinson under the direct supervision and control of Respondent. Therefore, Respondent is not guilty of improperly affixing his seal to the plans for the Zummarraga project. Later, after the structure's plans were finalized, the contractor determined that a detention pond would have to be designed for the site and a DER permit obtained for the pond. Respondent was retained to design a detention pond for the site and worked with DER to meet its extensive permitting requirements for such a pond. See Chapter 17-4, 17-25 and 17-512, Florida Administrative Code. That design was submitted to DER and a permit was issued for the detention pond. The original unsealed set of plans was amended for the building department. The specific details of the more rigid DER requirements, such as site work, grading and contouring, were not included on the plans filed with the building department and the owner did not contract with Respondent to include redundant detail on the building department's plans. Essentially, the building department's plans reflected the location of the detention pond and the area of the wetlands on the property which were subject to DER jurisdiction. Additionally, the plans contained some specifications which guided the contractor on pond requirements and in grading and contouring the site. These notes in conjunction with the DER permit requirements were sufficient to accomplish the building of the detention pond. Therefore, the desire of the owner and the avoidance of unnecessarily redundant detail between the DER permit and the building department's plans justified the lack of any extensive site work detail on the building department's set of plans for the Zummarraga project. The plans devised by Mr. Carr did not contain any architectural work which was not incidental to the engineering work he performed. 2/ Therefore, Respondent is not guilty of improperly affixing his seal to plans depicting work outside his field or of practicing outside of his field. In every instance, the plans of Dr. Zummarraga's office building were of sufficient detail to meet the building department's requirements for the issuance of a building permit, to allow the contractor to construct the project according to the Standard Building Code and to obtain a certificate of occupancy from the building department. Obviously, on these facts, the plans met the standard of practice in the community for the engineering services Respondent was hired to perform. Moreover, the lack of code related, electrical or mechanical details was justified under the facts and circumstances of the Zummarraga project and it was well within the professional judgment of the Respondent to omit such details given the standards of practice in the Bay County area. Raulerson/Liberty National Building The plans for the Raulerson/Liberty National building were signed and sealed by Respondent on July 31, 1989. Mr. Raulerson is an experienced developer in the Bay County area and acts as a general contractor on his own projects. Prior to hiring Respondent, Mr. Raulerson had been working with a local draftsman and Liberty National's architect to create a set of plans for the construction of Liberty National's office building in Bay County. Mr. Raulerson contacted Respondent on the advice of Bayne Collins, a local architect. Mr. Collins advised Mr. Raulerson that his plans were complete and all he needed was an engineer to check the wind loads. 3/ Mr. Raulerson gave Respondent the plans he had developed in conjunction with Liberty National's architect. Mr. Raulerson asked Mr. Carr to go through the plans and do a structural analysis to make sure that wind load requirements were met, that the building was structurally sound and that the building met the requirements for issuance of a building permit. Mr. Carr reviewed the plans and determined that they were an excellent set of plans for a very simple, sound and over-designed structure. He calculated the wind loads for the building and completed a structural analysis of the building. He also made one minor correction to the plans. Mr. Carr thought it ridiculous to put Mr. Raulerson to the expense of copying the Liberty National plans and essentially adopted the plans as his own. In this case, the fact that the plans were not drawn under Respondent's supervision is immaterial since the specific circumstances of the project did not call for such supervision in that the plans were drafted by experienced individuals. The plans were under Respondent's control at the point in time he was hired by Mr. Raulerson and the plans submitted to him for his review and approval, disapproval or amendment. Since copying the plans would be an unnecessary duplication of effort and Respondent did in fact exercise control over the plans by reviewing them before he affixed his seal to them, Respondent is not guilty of improperly affixing his seal to construction plans. The Raulerson/Liberty National plans did not contain any architectural work which was not incidental to the engineering services he performed. Anything in the plans which may be construed as "architectural work" was requested and specified by the owner to be in the plans. Therefore, Respondent is not guilty of improperly affixing his seal to plans depicting work outside his field or of practicing outside his field. The plans did contain a roofing plan which called for pre-engineered trusses. The detail on the plan simply read "pre-engineered trusses." The plans did not contain any requirements relating to who was to design the pre- engineered trusses or requirements for structural submittals on the trusses. In the Bay county area "pre-engineered trusses" means trusses from Fagans, the local truss manufacturer. It is common knowledge, that Fagan's has a licensed engineer on staff who designs all of its pre-engineered trusses from the plans submitted to him. The pre-engineered trusses all have pre-construction documentation available. Also, submittals for the trusses accompany the trusses at the time of their delivery. With such knowledge, it is unnecessary to specify any more information or requirements regarding the truss manufacture on the Liberty National plans. Similarly it was unnecessary to detail that submittals be given to the engineer since such submittals accompanied the trusses. The absence of any more detail was justified by the specific circumstances of the Liberty National project and well within the professional judgment of the Respondent given the nature of the pre-engineered truss market in the Bay County area and the fact that Respondent was the construction manager on the project. As indicated, Respondent also acted as the construction project manager and would visit the construction site about once a week. At the point in time Mr. Raulerson was going to order the trusses, he decided to change the pitch of the roof, Mr. Raulerson did not advise Mr. Carr of his decision. Mr. Carr discovered Mr. Raulerson's change when he visited the construction site. Fortunately, Respondent had the project file with him. With the project file information and the submittals from the truss manufacturer, Respondent checked the load conditions for the changed pitch. No structural concerns were presented due to the change in pitch of the roof. The Liberty National plans were not amended because Mr. Raulerson did not contract for them to be amended. The plans were not required to be amended under Chapter 471, Florida Statutes. Respondent did not commit any violations of Chapter 471, Florida Statutes, in regards to his actions outlined above. Bay Podiatry Center The plans for the Bay Podiatry Center were signed and sealed by Respondent. However, the date the plans were signed and sealed was not included on the plans. It was inadvertently omitted by Respondent. The absence of the date is a de-minimis violation of Chapter 471, Florida Statues, and does not justify the imposition of any formal penalties. However, Respondent should be given a letter of guidance for the violation. Respondent was not brought into the Bay Podiatry Center project until the final draft of the plans was to be done. Up until that time, Dr. Wilkerson, the owner of the project, had worked up preliminary drafts of the project in conjunction with his contractor and a local draftsman. They had developed a building with an attached carport. Mr. Carr did work directly with the draftsman on the final plan. Therefore, the plans were created under the direct supervision and control of Respondent. Since Respondent supervised and controlled the finalization of the project's plans at the crucial time and since the people involved in drafting the plans did not need more supervision and control, Respondent is not guilty of improperly using his seal. There was no clear and convincing evidence which demonstrated that Respondent performed any architectural work which was not incidental to the engineering services he performed. At the time Dr. Wilkerson desired to begin construction and obtain a building permit, he had not decided on a final roofing system. Therefore, the final plans called for the use of pre-engineered trusses and did not have a great amount of detail on a roof framing plan. There was some detail provided on the page of the plans detailing the wall section of the building. This page provided sufficient detail for a competent contractor to construct the building according to code. In fact, the building was so constructed and a certificate of occupancy was issued for the building upon its completion. Again the trusses would come from Fagans. Petitioner did in fact review submittals from Fagan's truss engineer for the pre-engineered trusses used on the Bay Podiatry Center. Included in those submittals was a roofing plan in which the trusses were numbered to fit the sequence shown in the roofing plan. Respondent made sure the trusses and roof system were structurally sound. However, the owner did not contract with Respondent to amend the building department's plans. Chapter 471, Florida Statutes does not require such an amendment. Given the truss market in the Bay County area, the knowledge of Respondent regarding that market, the fact that a decision regarding a roof line had not been made when the plans were sealed, and that it was appropriate to leave such a decision for later in the construction process, no further detail was required in specifying the roof system for this project. No clear and convincing evidence was presented that demonstrated Respondent was negligent in his specifications on the roof system. The only exception to the above was that Respondent did not specify the material of the trusses over the carport. Such information is not supplied by the Code and therefore must be supplied by the engineer. The oversight was caught by the contractor when he was preparing to order the trusses. The contractor contacted Mr. Carr. Mr. Carr determined what the appropriate truss material should be and informed the contractor. The inadequacy of the plans was resolved in less than ten minutes. The omission of such a detail is negligent on the part of Respondent and is a violation of Chapter 471, Florida Statutes. However, on these facts, the omission of the detail is minor. Most of the light, plumbing and mechanical fixtures were prelocated by the owner prior to the time Respondent was hired. Respondent did not purport to draft plumbing, electrical or mechanical plans in detail in the final plan. Except in one respect, the detail was sufficient to guide the respective trades in the performance of their work and no more detail was required. The only exception was that Respondent approved a special detail of the hub drain/trap primer which was not in accordance to code. Since Respondent provided a special detail which did not meet the code requirements and which was not demonstrated to be justified by the circumstances of the Bay Podiatry project, he is guilty of negligence in the drawing of the Bay Podiatry plans in that aspect. Given the fact that this is a very small error in a larger project and that the drain was put in according to code during the construction of the building, Respondent's violation is a minor one. Finally, the draftsman, without instructions from Respondent, put some plumbing and mechanical notes in the plans which clearly did not relate to the project. Respondent did not catch the inclusion of the notes and sealed the plans with the superfluous notes in them. However, it was obvious that the notes did not relate to the project and the trades involved ignored them. The notes did not cause any problems during the construction and were not shown to be inimical to the public health and safety. Therefore, while the inclusion of the notes was sloppy work, there was no negligence shown on the part of Respondent. Eleventh Street Office Park The plans for the Eleventh Street Office Park were signed and sealed by Respondent on January 31, 1989 The Eleventh Street Office Park project demonstrates best the dynamism involved in an evolving construction project. Often, as with the Eleventh Street project, an owner is not sure of the best method or design (usually determined by lowest cost) to utilize prior to construction or whether he wants to go forward with the expense of construction of a building given certain designs. On the Eleventh Street project three plans were developed, beginning with a three story structure with structural steel and precast walls, and ending with a large, one story, cement block structure on a cement slab. All the plans were for a shell building and did not include any floor plan. Preliminary rough drawings were completed by a draftsman who was hired by the project's owner. Respondent reviewed these rough drafts and over the course of several weeks made numerous structural changes. After the plans were re-drawn to Respondent's satisfaction, he submitted them to the building department in order to obtain a building permit. There is no question that the plans for the Eleventh Street project were drawn under Respondent's direct supervision and control. Therefore, Respondent is not guilty of improperly using his seal. The plans submitted to the building department were not intended to be complete. For instance, the owner had not decided where to locate the restrooms in the building. However, the owner, for unspecified reasons, wanted to proceed with obtaining a building permit. With that decision open, the detail for the plumbing aspects of the plan were not intended to be complete or to match as to specifics. Such limited detail was intended only to place the building department and the contractor on notice that some consideration had to be given to the upcoming plumbing. The same considerations applied to the electrical and mechanical aspects of the plans. All of the evidence concerning deficiencies in the electrical design of the Eleventh Street Office Park was based on Petitioner's expert's review of a single sheet of plans obtained from the building Department. This sheet is mysterious as to its origins and relationship to the Eleventh Street project. The sheet was not prepared by Respondent, did not bear his seal, lacked the fire department's approval which was present on other pages of the project's plans, and was a different size paper than those sealed by Respondent. There was no substantial evidence which demonstrated Respondent had prepared this sheet or that the sheet reflected the electrical plans used in the Eleventh Street project. The absence of extensive detail or the provision of extraneous notes on the electrical, mechanical and plumbing aspects of the plans were justified by the fact that the owner of the project had not made up his mind in regards to those details, such decisions could be determined later in the construction process, the Eleventh Street project was a shell building and there was sufficient detail for the licensed trades to perform their tasks when the time came and the decisions were made. The incompleteness of these plans in that regard was clearly justified by the specific circumstances of the Eleventh Street project. Therefore, Respondent is not guilty of violating Chapter 471, Florida Statutes. As with the Bay Podiatry project, the only exception to the above was that the hub drain/trap primer detail was not in accordance with the building code. For the reasons stated in regards to the Bay Podiatry project, the provision of the hub drain detail constitutes negligence in the practice of engineering in violation of Section 471.033(1)(g), Florida Statutes. Again the violation is a minor one. Similarly, as with the other three projects, no substantial evidence was presented that Respondent performed any architectural services in relation to the Eleventh Street project which were not incidental to the engineering services he performed. There was a great deal of debate among the experts as to the adequacy of the structural aspects of the Eleventh Street Office Park and whether they met the standards of practice for engineers. Most of the debate centered on how much detail needed to be placed on the plans and whether the detail provided was sufficient for a contractor to build a safe building. The better evidence demonstrated that the amount of detail on the plans was sufficient to enable a contractor to build a safe building. The detail which was not contained on the plans was contained in the building code and did not need to be included on the plans. Such a practice comports with the standard of practice in the Bay County area and is a specific circumstance of a project which would enable a professional engineer to exercise his judgment and not include such detail. 4/ Moreover, although the calculations were not contained on the plans, Respondent did, in fact, determine the structural soundness of the Eleventh Street project. Therefore, Respondent is not guilty of violating Section 471.033(1)(g), Florida Statutes. The only exception to the above is that Respondent was negligent in specifying the type of mortar to be used in the concrete walls. In essence Respondent specified three different types of mortars. These mortars significantly differed as to each mortar's respective strength. Use of an improper mortar in the concrete walls can effect the strength of the wall and cause them to be unsafe. This inconsistency in detail or specifications differs from the inconsistency in details or specifications where such details or specifications obviously do not apply to the project or where such details or specifications have no contrary reference in the plans. The latter two cases while showing sloppy work are not necessarily indicative of negligence and depend greatly on the surrounding facts and circumstances before a finding of negligence can be made. The inconsistency with the mortar is indicative of negligence since a contractor may very well use the wrong mortar on a project. In this case, the inconsistency did not become a problem and Respondent was present as the project manager to handle any problem which may have arisen. Therefore, the violation of Chapter 471, Florida Statutes, is moderate to minor.
Recommendation That the Department enter a Final Order finding Respondent guilty of five violations of Chapter 471, Florida Statutes, assessing a total fine of $750.00 and placing the Respondent's license on probation for a period of one year, during which Respondent should be required to take and pass a course or courses on the proper methods of plan drafting for the four violations involving negligence; and issuing a letter of guidance for the violation involving the date. DONE and ENTERED this 22nd day of February, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1991.
The Issue The issue is whether Oliver J. Turzak violated statutes and rules governing the practice of engineering as charged in the Amended Administrative Complaint filed with the Clerk of the Florida Board of Professional Engineers (the “Board”) on October 4, 2012.
Findings Of Fact Petitioner is charged with regulating the practice of engineering pursuant to chapter 455, Florida Statutes. The Administrative Complaint at issue was filed by the Florida Engineers Management Corporation (“FEMC”) on behalf of Petitioner. FEMC is charged with providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers pursuant to section 471.038, Florida Statutes. Respondent is, and at all times material to these proceedings has been, a licensed professional engineer in the State of Florida, having been issued license number PE 18230. Respondent’s last known address is 5405 Water Street, New Port Richey, Florida 34652. On April 20, 2008, Respondent signed, sealed, and dated a Settlement Stabilization Plan for the Fish Residence located at 11251 Knotty Pine Drive, New Port Richey, Florida (“Fish Residence Project”). On June 10, 2008, Respondent signed, sealed, and dated an engineering opinion letter (“Letter”) which was addressed and sent to Champion Foundation Repair, the entity which was Respondent’s client for the Fish Residence Project. The Letter stated in material part: [Respondent], whose signature appears below, has verified placement of twenty-seven (27) exterior piers and twenty-five (25) interior jack pins as located on the drawings by the same job number. The piers all achieved sufficient load bearing characteristics to transfer the house weight to the piers and to close cracks substantially and stabilize the foundation. The remediation program was developed according to geological data supplied by Central Florida Testing Laboratories, Inc., dated November 2007. Similar pier reports on numerous structures with similar problems have demonstrated long term success without additional settlement. Therefore, it is the opinion of the [Respondent] that the location has been repaired and stabilized and, further, that there is no evidence of new sinkhole activity at the location. In compliance with Florida Statute 627.707, the report and remediation program was prepared under the supervision of a Registered Professional, whose field of expertise is a Geo-Technical Engineer. The Board has adopted Responsibility Rules of Professional Engineers (“Responsibility Rules”). These rules are contained in Florida Administrative Code Chapters 61G15-30 through 61G15-35. Professional engineers, who perform services covered by the Responsibility Rules, are required to comply with those rules. Rule 61G15-30.002(1) mandates that Respondent, as the structural engineer of record, is professionally responsible for the documents prepared for the Fish Residence Project. As such, Respondent is responsible for producing a document that complies with the applicable portions of the Responsibility Rules. Respondent acted as Engineer of Record of the Structure for the Fish Residence Project as that term is defined in rules 61G15-31.002(1) and 61G15-31.003(1). As such, all structural documents prepared, signed, sealed, and dated by Respondent must contain the information set out in rule 61G15-31.002(5), as mandated by rule 61G15-31.001, setting out the General Responsibility standards for engineers designing structures. Section 471.033(1)(g), Florida Statutes, provides that an engineer is subject to discipline for engaging in negligence in the practice of engineering. Florida Administrative Code Rule 61G15-19.001(4) provides that negligence constitutes “failure by a professional engineer to utilize due care in performing in an engineering capacity or failing to have due regard for acceptable standards of engineering principles.” Rule 61G15-19.001(4) also provides that: [F]ailure to comply with the procedures set forth in the Responsibility Rules as adopted by the Board of Professional Engineers shall be considered as non-compliance with this section unless the deviation or departures therefrom are justified by the specific circumstances of the project in question and the sound professional judgment of the professional engineer. Respondent’s June 10, 2008, Letter is an engineering “certification” as that term is defined in Florida Administrative Code Rule 61G15-18.011(4): statement signed and sealed by a professional engineer representing that the engineering services addressed therein, as defined in section 471.005(6), F.S., have been performed by the professional engineer, and based upon the professional engineer’s knowledge, information and belief, and in accordance with commonly accepted procedures consistent with applicable standards of practice, . . . . “Certifications” are subject to the standards set out in Florida Administrative Code Rule 61G15-29.001, which require that if an engineer is presented with a “certification” that “involve[s] matters which are beyond the engineer’s scope of services actually provided” that the engineer must “decline to sign . . . such certification.” Section 471.033(1)(a) provides that an engineer is subject to discipline for “[v]iolating . . . [a] rule of the [B]oard.” Section 471.033(1)(e) provides, in material part, that a professional engineer is subject to discipline for “[m]aking or filing a report or record that the licensee knows to be false” when the report is “signed in the capacity of a licensed engineer.” Rule 61G15-19.001(6) provides that: A professional engineer shall not commit misconduct in the practice of engineering. Misconduct in the practice of engineering as set forth in Section 471.033(1)(g), F.S., shall include, but not be limited to: * * * (b) Being untruthful, deceptive, or misleading in any professional report, statement, or testimony whether or not under oath or omitting relevant and pertinent information from such report, statement or testimony when the result of such omission would or reasonably could lead to a fallacious conclusion on the part of the client, employer or the general public; . . . . The Fish Residence In 2007, the residence located at 11251 Knotty Pine Drive in New Port Richey, Florida (the “Fish Residence”), experienced structural damage from subsidence in the ground underlying the home. As a result, a claim was made to Fish’s insurance company, and an investigation was commenced. Central Florida Testing Laboratories, Inc. (“CFTL”), a geotechnical engineering firm, performed an in-depth analysis and found, in a signed, sealed, and dated engineering report issued on November 20, 2007, that the subsidence was likely caused by a number of factors, including sinkhole activity. As a result, the Fishes hired a contractor, Champion Foundation Repair (“Champion”) to remediate the damage. Champion hired Respondent to perform the engineering services necessary to obtain a permit for the remediation, inspect the construction, and complete a report certifying the adequate completion of the work. Respondent had a long history of providing similar services to Champion in the past, having performed engineering services in over 200 projects for Champion. Respondent created, signed, sealed, and dated on April 20, 2008, a Settlement Stabilization Plan (“Plan”), which formed the design basis for the work Champion carried out. Well into the project, the Fishes became dissatisfied with the work done by Champion. Champion was terminated as the contractor before the work was finalized and before Respondent was able to perform a final inspection of the property. Litigation was commenced and Bracken Engineering (“Bracken”), a forensic structural/civil engineering firm was engaged to perform an investigation of the work performed by Champion and Respondent for the pending litigation. Bracken issued a lengthy engineering report (“Bracken Report”), under engineering seal, on June 20, 2011. The Bracken Report found Respondent’s Plan deficient, that Respondent was not adequately knowledgeable about the site, that Champion’s implementation of the Plan, and Champion’s construction work as a whole was flawed and inadequate. Subsequent to the issuance of the Bracken Report, a complaint was filed with the Board, and these proceedings were initiated. Settlement Stabilization Plan for the Fish Residence Roger Jeffery opined that the Plan failed to meet required engineering standards. The parties agree that when a structure, such as the Fish Residence Project, is initially built, the loads are directly transferred to the foundation, which then transfers the loads directly and uniformly as a continuously supported structure to the underlying soil. However, when, as occurred in this case, the structure’s loads are no longer transferred directly and uniformly to the ground through the foundation, but are transferred through pins which underlie the foundation, the foundation itself now acts as a beam or beams and is subject to the stresses applied to the beams. Respondent asserted that the foundation load would remain continuous, and therefore stable, since grouting had been poured under the Fish Residence to consolidate and stabilize the soils. However, Respondent’s plan did not call for grouting to be used. Moreover, according to the Bracken Report, no grouting was ever placed under the Fish Residence, even though it was called for in the CFTL Report to stabilize the structure. Respondent’s failure to perform a final inspection resulted in an inaccurate assumption and opinion. Respondent’s claim that grouting placed in the void under the structure reconstituted the original soil conditions is rejected, especially in light of the fact that Respondent also analyzed the pins and foundation in a beam configuration--a simple span beam. Further, Respondent’s analysis must be discounted because the calculations justifying his conclusion that the structure was adequately supported was performed in December 2013, well after these proceedings commenced and more than five years after the Plan had been created by Respondent. As a result of the changed structural support system (from ground support to pins), the position of the pins is critical to the stability of the structure. If the pins are too far apart for the strength of the foundation’s materials to accommodate the foundation, now acting as a beam or beams, the foundation will be overstressed. Cracking, at a minimum, or collapse, at a maximum, can occur. Cracking or collapse can occur because the concrete slab foundation used at the Fish Residence does not have any existing top reinforcing steel in it. When asked if perhaps reinforcing steel might have been placed within the slab itself, Mr. Jeffery stated he had never seen such use of steel in over 40 years. No evidence to support the steel within the slab theory was presented. When the newly installed pins become the structural support, a negative bending moment is introduced to the top of the foundation, now acting as a beam. The top of the foundation is made only of concrete, which has little ability to resist the induced negative moment. As a result, deflection, racking, and ultimate failure will be the result if the pin placement and the spans created by the placement are inadequately designed. Respondent’s after-the-fact calculations do not address this issue. Using a continuous beam analysis, the preferred method to evaluate the beam/pin assemblage design in structures like the Fish Residence, the spacing of the pins (usually ten feet apart) designed by Respondent coupled with the loads generated by the foundation and the lack of reinforcing steel in the top portion of the foundation would result in stress that would exceed the strength of the concrete and, at a minimum, the concrete would eventually crack. Dr. Ahmed Said, Respondent’s expert, agreed with this conclusion. Even using a simple beam analysis, the design method Respondent testified he used and that Dr. Said agreed was commonly used, movement, resulting in cracks at the foundation slab, would occur. Again, since no reinforcing steel exists at the top of the slab, as a matter of simple physics, the concrete would have to respond to the deflection that would occur at the bottom of the foundation and, concrete being weak, would likely crack or worse at the top. Respondent provided no persuasive rebuttal to Mr. Jeffery’s analysis. First, Respondent claimed that elevations taken at the site in 2013 showed minimal deflective movement, proving the Plan design was sufficient. However, Mr. Jeffery noted that subsequent elevations taken at the completed structure would have little meaning regarding the adequacy of the design since: the design stands alone and is not affected by how the contractor implemented it; and no one could know whether the design, as constructed, would withstand the required stresses until it was subjected to full design loading, which would have to include the full wind loads to which the structure was designed. There is no evidence the structure was ever subjected to such stress in the period between its construction in 2008 and the later recorded elevations. Next, Respondent claimed the 3-foot “spreaders” attached to the pins would reduce the span of the foundation acting as a beam and thus would overcome the lack of reinforcing steel in the top of the foundation and the resulting overstress. The problem with this assertion is that the Plan does not call for “spreaders” to be placed in the design by any notations that are readily and universally cognizable. Respondent admitted that the symbol regarding the use of the spreaders was agreed to only between Champion and him, and was not included in the Plan. However, even if the notations used by Respondent could be interpreted as calling for the use of the “spreaders,” the “spreaders” would not materially impact the fact that the foundation, acting as a beam, would be overstressed, since a negative moment would still exist due to the lack of reinforcing steel at the top of the foundation. Finally, Respondent asserted that Mr. Jeffery’s analysis was flawed since Mr. Jeffery had assumed the Fish Residence was a masonry structure whereas Respondent claimed the structure was a wood frame covered with a stucco exterior. This issue is confused by the fact that both the CFTL and Bracken Reports, upon which Mr. Jeffery relied, both stated the Fish Residence was a masonry structure, although the CFTL Report notes the structure was initially constructed as wood frame. In any event, Mr. Jeffery testified that regardless of the masonry versus wood frame question, the structure would still be overstressed. Changing the construction from masonry to wood frame/stucco veneer might lessen the overstress, but not materially. In addition to the overstress created by failing to address the induced negative moment at the top of the foundation, Respondent’s design also resulted in a shear load which exceeded the maximum allowable under the American Concrete Institute 318 Concrete Code; and, since that code is incorporated into the Florida Building Code (“FBC”), the requirements of the FBC as well. The shear load factor is especially relevant since Respondent did not assure that the pins would not be placed under windows and doors where this issue is critical. Respondent did not address the shear issue as it applied to windows and doors in his after-the-fact calculations. The Plan is also deficient since it did not indicate the placement of windows and doors in the Fish Residence Project. By not doing so, the pins, when put in the ground, could be placed underneath these internal spaces which do not then form a continuous roof/wall/foundation assembly. If that occurred, and it apparently did in the Fish Residence on four occasions, the shear problem described above is exacerbated, since at either side of a door or window a point load is created and the shear stress increased. The Plan also fails to include required information. While the Plan calls for the use of a “FastSteel” product, the Plan does not include any product specification number or the strength of the material to be used. Although Respondent stated that the contractor, based upon its experience, knew what was intended, ultimately Respondent admitted that the required information was not in the Plan. Similarly, the Plan did not include the design loads and criteria used in the design and provided no building codes and standards. Respondent admitted the Plan lacked this required information. The missing information is important. Only by including such information on design documents can the engineer adequately communicate to the reviewing building code plans examiner or a contractor what the design engineer intended. By not including this required information, the reviewer can be uncertain as to whether the engineer used the correct loadings or designed the structure in accordance with the correct edition of the building code. Similarly, failing to provide sufficient information concerning the products to be used may lead a contractor to utilize the wrong product during construction. The Plan was submitted to Pasco County for issuance of a permit. The county building department issued a permit for the work to be performed. Mike Mosher of Champion believed the Plan included all the specifications he needed to identify the components to be used and the manner in which the work was to be performed. He also testified the work was completed consistent with the Plan. The June 10, 2008, Certification Letter Respondent issued the June 10, 2008 Certification Letter (“Letter”) under seal to his client before he completed the inspections necessary for the conclusions in the Letter to accurately reflect the opinions contained in it. Both Respondent and his client, Champion, agree that since the client had been denied access to the Fish Residence Project, no final inspection of the site by Respondent ever occurred. As a result, Respondent admitted that, when he signed, sealed, and issued the Letter, the engineering services, upon which the certification in the Letter was based, had not yet occurred. The evidence proved that Respondent’s last appearance at the Fish Residence Project occurred on or about May 5, 2008, and that most of the work done at the site occurred after that date with the final construction finishing on or about May 30, 2008. As a result, the conclusions and opinions contained in the Letter were not based upon accurate and contemporaneous engineering analysis. Since the Letter purports to be grounded in engineering inspections, the statements in the Letter were not fully based upon the services Respondent actually provided. While not entirely clear from the evidence and testimony, had Respondent had the ability to perform a final inspection, he would have had the opportunity to discover several deficiencies in the construction. The Bracken Report detailed several deficiencies and non-conformances with the Remediation Plan. These deficiencies included: 1) failure to drive 5/6ths of the pilings to the depth prescribed by the notes to the Plan; a large number of pins found beneath door and window openings; mis-installation of pins and pin assemblages; and 4) no grouting placed in the ground although Respondent intended that grouting be used. Respondent agreed that at least some of the Bracken Report conclusions were warranted. Respondent asserts that, although the Letter was issued prematurely, Respondent should not be held accountable since the Letter “never went public.” This contention is rejected. The Letter was a final engineering report/certification and, upon issuance to Respondent’s client, Champion, was fully subject to all engineering standards, rules, and statutes. Since the Letter contained conclusions that were inaccurate and based upon information that was not collected under Respondent’s direct supervision, issuance of the Letter constituted negligence and misconduct in the practice of engineering. Respondent’s Prior History of Discipline Respondent has previously had discipline imposed. The instant case is the first in more than 40 years of Respondent practicing engineering that involved a subsidence remediation plan. Respondent’s first prior discipline was in FEMC Case No. 00-0086. In that case, Respondent was hired to correct building code issues identified by a county building department. The drawings he made violated the building code requirements, contained deficiencies, and were not in compliance with the standard practice of engineering. Respondent proceeded to hearing without benefit of legal counsel. A final order was entered by the Board reprimanding his license, fining him $1,000, plus costs of $302.93, placing him on probation for one year, and requiring he complete a course in professionalism and ethics while on probation. Respondent’s second prior discipline was in FEMC Case No. 01-0079. That matter was based upon drawings that were dated February 16, 2001. Respondent was not represented by counsel in that proceeding. In that proceeding, no proof was presented that the structure depicted in the plans by Respondent was ever built. Therefore, no direct risk of harm to the public was proven. Respondent entered into a Settlement Stipulation in that matter which was approved by the Board of Professional Engineers. He agreed to pay a total administrative fine of $7,000, plus $316.67 in costs and receive a reprimand on his license. He also received a one-year suspension of his license, followed by two years’ probation, and continuing education requirements. The other instance of discipline imposed against Respondent was in FEMC Case No. 2004037005. That complaint arose from plans that were signed by Respondent in June 2004. He was charged with signing plans he had not personally prepared or were not prepared under his supervision. Respondent entered into a Settlement Stipulation in that case that was approved by the Board. He paid a $5,000 administrative fine and costs of $750; received a reprimand on his license; received two years of probation; and was required to make detailed reporting to the FEMC during the probationary period. No additional evidence of prior disciplinary matters was offered other than the three cases described above.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent Oliver Turzak’s Professional Engineer license be reprimanded, and that the license shall be suspended for a period of one year. Upon termination of the suspension, Respondent shall be reinstated under terms and conditions of reinstatement as the Board determines are appropriate, including two years of probation with terms the Board deems appropriate. Respondent shall also be fined $1,000 per count ($2,000 total fine). Finally, Petitioner shall be entitled to assess costs which are related to the investigation and prosecution of this case, other than costs or fees associated with an attorney’s time, as provided in section 455.227(3), Florida Statutes. DONE AND ENTERED this 6th day of May, 2014, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2014. COPIES FURNISHED: Zana Raybon, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303 Michael Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 David P. Rankin, Esquire Law Office of David P. Rankin, P.A. 18540 North Dale Mabry Highway Lutz, Florida 33548 John Jefferson Rimes, III, Esquire Florida Engineers Management Corporation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303
The Issue The issues framed by the Amended Administrative Complaint are whether Mr. Chandwani was guilty of negligence in the practice of engineering with respect to drawings prepared for the renovation of a house, and whether he failed to obtain a certificate of authorization for a corporation which he owned which offered engineering services to the public.
Findings Of Fact The notice of the hearing was sent to Mr. Chandwani at the address disclosed on the Election of Rights form in which he demanded a formal hearing on the allegations made in the Administrative Complaint filed by the Department of Professional Regulation. Mr. Chandwani did not, however, appear at the hearing. Mr. Chandwani is licensed by the Board of Professional Engineers holding registration #PE0017049. Mr. Chandwani is the president of International Engineers and Builders, Inc., a Florida corporation whose Articles of Incorporation were filed with the Secretary of State on July 8, 1980. Mr. Chandwani, on behalf of International Engineers and Builders, Inc., entered into a contract on November 28, 1984, with Peter Persaud for the preparation of sealed plans for the rehabilitation of a property located at 22740 S.W. 179th Place, Miami, Florida. Mr. Persaud had purchased the property while it was in foreclosure. The property had come under the jurisdiction of the Dade County Code Enforcement Department due to defects in the structure, and Mr. Chandwani was engaged to provide drawings for the rehabilitation of the property. The plans originally delivered to Mr. Persaud by Mr. Chandwani were neither signed nor sealed. When taken to the Dade County Building and Zoning Department they were found to be deficient not only because they were not signed and sealed, but because they did not meet the criteria of the South Florida Building Code. For example, a cabana shown on the plans should not have been located on the property line. Eventually Mr. Chandwani provided signed and sealed plans, but only after a demand to do so had been made by Mr. Persaud's attorney. The testimony of James Owen Power, a consulting engineer who testified about the plans on behalf of the Board of Professional Engineers, has been accepted. The plans submitted are deficient in that they do not contain complete information on all components of the structure. For example, there is no design specified for roof trusses, nor is there any design for assembling trusses into a roof system. The plans are also confusing and contradictory in that Section A on sheet 1 of the plans appears to show a wall of a garage as part of an existing building but the plans indicate elsewhere that the garage is new, and nonexisting. There is also a confusing note with respect to a "cathedral ceiling" in the construction of the house, for there is no definition of what a cathedral ceiling is. Moreover, the drawings appear to show a level ceiling, not a cathedral ceiling. It is not clear whether the garage is to have any ceiling. Although Mr. Chandwani contracted with Mr. Persaud through International Engineers and Builders, Inc., International Engineers and Builders, Inc., has never been issued a certificate of authorization under the provision of Chapter 471, Florida Statutes.
Recommendation It is recommended that a final order be entered finding Mr. Chandwani guilty of negligence in the practice of professional engineering and of offering engineering services through an entity which does not hold a certificate of authorization, that he be reprimanded, fined $2,000 and his licensure be placed on probation for a period of two years. The fine shall be paid within sixty (60) days of the entry of the final order. DONE and ORDERED this 11th day of April, 1988, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1988. COPIES FURNISHED: Arjan D. Chandwani 2560 Azalea Avenue Miramar, Florida 33025 Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seeley Executive Director Construction Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are whether Respondent violated an order of the Board of Professional Engineers (Board) previously entered in a disciplinary proceeding, and, if so, what disciplinary action is appropriate.
Findings Of Fact Respondent is a licensed professional engineer in Florida and holds license PE 20638. He has held the license continuously since 1979. In 2000, Petitioner brought a disciplinary action against Respondent, styled FEMC v. John B. Benson, III, P.E., Department of Business and Professional Regulation Case No. BPR- 2000-04871, for alleged negligence in preparing a deficient electrical plan and related misconduct in connection with the construction of an addition to a church. The case terminated with the Board's Final Order Approving Settlement Stipulation ("2000 Final Order"). In the parties' Settlement Stipulation, Respondent agreed to pay a fine and to be permanently prohibited from practicing electrical engineering. On September 17, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for electrical inspection of the "rough-in"2 electrical work associated with construction at 4915 26th Street, West, Building A, in Bradenton, Florida. On September 17, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for electrical inspection of the rough-in electrical work associated with construction at 4915 26th Street, West, Building J. On December 1, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for final electrical inspection of the electrical work associated with construction at 4915 26th Street, West, Building A. On December 3, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for final electrical inspection of the electrical work associated with construction at 13411 Blythfield Terrace, Bradenton, Florida. No allegation was made, or evidence introduced to show, that the inspection reports referred to in paragraphs 4 through 7 contained errors or that the inspections were deficient. Mr. Ooten, an expert in electrical engineering and building inspections, testified that building officials usually require an electrical plan to be included in building plans, but the electrical plan does not have to be signed and sealed by an electrical engineer. On December 17, 2004, the Board received a complaint from the chief building official for Manatee County, regarding Respondent's signing and sealing electrical inspections in 2004, contrary to the Board's 2000 Final Order prohibiting Respondent from practicing electrical engineering. This complaint and the Board's subsequent investigation led to the Administrative Complaint which is the subject of this case. Respondent's defense to the charges in the Administrative Complaint is that he understood the Board's 2000 Final Order to prohibit him from designing an electrical plan. He did not think he was prohibited from signing and sealing electrical inspections, or from signing and sealing construction plans that included electrical components. On March 25, 2005, the Board received another complaint from the chief building official for Manatee County, who claimed that Respondent signed and sealed an electrical plan for a building for the Lemur Conservation Foundation. In response to this second complaint, Respondent informed the Board that he had placed a disclaimer statement on the building plans that "These plans have been reviewed for adequacy of structural components and systems only in compliance with FBC 01 Section 1606 130 MPH." Respondent placed this statement only on the first page of the building plans. As a consequence of this second complaint and investigation, Respondent was issued a "Letter of Guidance." No Letter of Guidance, clearly identified as such, is contained in the record. Respondent's Exhibit 1 includes a "Closing Order" of Petitioner, dated August 8, 2005, which may constitute the Letter of Guidance. It contains a statement directed to Respondent: The panel cautions the Subject that when he signs any page of plans he is responsible for all engineering depicted on the page unless the limitation of his analysis and approval appears clearly on the same page. Respondent asserts that, until the Letter of Guidance was issued, he did not understand that his inspection of electrical components and systems was the practice of electrical engineering. The Letter of Guidance, however, did not address the issue of the propriety of Respondent's four electrical inspections. The Letter of Guidance was a response to the second complaint about Respondent's signing and sealing an electrical plan, and his defense that he used a disclaimer statement to indicate that his signature and seal was not a representation about the electrical plan. The essence of the Board's "guidance" to Respondent was to make his disclaimer regarding the electrical components more explicit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding that Respondent violated Subsection 471.031(1)(k), Florida Statutes, for violating an order of the Board previously entered in a disciplinary proceeding, and imposing a penalty of license suspension for a period of four months and a fine of $4,000, plus the costs of these proceedings, as determined by the Board. DONE AND ENTERED this 9th day of June, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 9th day of June, 2006.
Findings Of Fact At all times material to this proceeding, the Respondent, Joseph Davidow, was licensed as a general contractor with the Florida Construction Industry Licensing Board. On August 3, 1978, the Respondent entered into an agreement with Rubin Zimmerman, Vice-president of Gilbert's Fish Camp, Inc., located in Monroe County, to construct an addition and make alterations to an existing motel. The contract specified the work to be done, for which the Respondent was to receive $190,000 with a completion date within 90 days of the contract. The Respondent was recommended to Mr. Zimmerman, the complainant in this case, by Mr. Zimmerman's architect on the project, Seymore Drexler, AIA. The Respondent originally bid the project at $210,000 of which $19,000 was allocated for electrical work to be performed by a qualified sub-contractor. The complainant believed that the original bid for electrical work was too high and suggested that the Respondent contact Mr. Charles Katzman of Kay Electric, a long-time friend of the complainant. Mr. Katzman was able to obtain his permits on the project despite being unlicensed in Monroe County, a fact which was not known by either the Respondent or the complainant at the time. Mr. Katzman bid $13,500 on the project which was $5,500 under the lowest bid received by the Respondent and was, therefore, awarded the project. During the course of the construction, numerous problems arose which affected the progress on the site. The complainant and his business partner, Harry Gilbert, made numerous requests for changes in the original plans and specifications. The "extras" requested by the complainant and/or his business partner were generally done orally on the site and at times through direct negotiations between the complainant and the Respondent's sub-contractors or workmen. The changes in the specifications included modifications to the flooring, patio, laundry and storage room, grade beams, pilings, walkways, stairs, patio wall, diningroom walls, linen closet, bathroom windows and walls, outside planter, doors and support system for electrical cooling. A dispute arose between the Respondent and the complainant and Mr. Gilbert over the cost and the extent of the change orders. Additionally, the Respondent was concerned because the extras requested by the complainant diverted his sub-contractors and/or workmen from the basic project to areas not contemplated by the contract. Certain of the electrical work performed by Mr. Katzman was negotiated separately from the original contract. Romex an illegal electrical wire was used on the project, but this was not known by the Respondent nor was Romex used in any of the electrical work specified in the original plans. Due to the continuing dispute over the cost of the extras and the diversion of workers for additional "extras," the Respondent sent the Monroe County Building and Zoning Department on April 12, 1979, a notice of withdrawal as general contractor on the subject project. Since that time liens have been filed against the project by suppliers of materials and/or labor which have been satisfied by the corporation. Civil litigation involving Kay Electric also has been instituted. The building inspection reports maintained by Monroe County concerning this project are incomplete.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department dismiss the complaint filed against the Respondent, Joseph Davidow. DONE and ORDERED this 26th day of November, 1980, in Tallahassee, Leon County, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1980. COPIES FURNISHED: Barry S. Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Arthur W. Karlick, Esquire 1454 NW 17th Avenue Miami, Florida 33125 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. Case No. 80-382 JOSEPH DAVIDOW, CG C007463 Respondent. /
The Issue Whether Robert Bennett's license as an electrical contractor should be disciplined for violating Sections 489.533(1)(f) and (i), Florida Statutes?
Findings Of Fact The Petitioner is the state agency charged with the responsibility of prosecuting administrative complaints against electrical contractors in the State of Florida. At all times relevant to this proceeding, Robert Bennett was licensed by the State of Florida as an electrical contractor. Mr. Bennett has been licensed as an electrical contractor since 1983. Mr. Bennett holds license number ER 0008588. Mr. Bennett practices electrical contracting as "Bob Bennett Incorporated" or "Bennett Electric." Mr. Bennett has performed electrical work for approximately fourteen years. On or about December 3, 1986, Mr. Bennett was contacted by Lee Maranzino or her husband. Mr. Bennett agreed to install three ceiling fans in the Maranzino home in Holly Hill, Volusia County, Florida. After beginning work at the Maranzino home, Mr. Bennett discovered that electrical work other than installing the three ceiling fans was needed. He explained the problems he discovered to the Maranzinos and obtained their approval to perform the work. After installing the ceiling fans, Mrs. Maranzino told Mr. Bennett that fuses associated with the use of the oven in her kitchen were blowing. Mr. Bennett was by Mrs. Maranzino's to correct the problem. Mr. Bennett was aware that a permit for the electrical work he ultimately performed for the Maranzinos was probably required because at some point during his work he suggested to Mr. Maranzino that a permit be obtained. Mr. Bennett told Mr. Maranzino that "technically, it's maintenance so we might be able to get by without doing it, you know" when Mr. Maranzino expressed concern about the cost of obtaining a permit. Ultimately, Mr. Bennett performed the following electrical work at the Maranzino home on December 3 and 8, 1986: Blocked off a junction box for a light in a closet and moved the light to the center of the room where the closet was located. The switch leg was also moved by Mr. Bennett; Replaced the wiring in three rooms and installed three ceiling fans; and Removed a subpanel with a burned fuseholder, installed and wired a new junction box, installed a proper "overcurrent device" in the main panel; rerouted the remaining four circuits to the main panel; and installed overcurrent devices on each circuit. Mr. Bennett recommended the rewiring because of his concern about the condition of the existing wire. Mr. Bennett used the following materials to perform the work he performed at the Maranzino home: 80 feet of 14-2 Romex wire; 4-1900 series boxes; 4 covers; 3-3 inch round boxes; and 6 Romex connectors. Mr. Bennett was paid $384.00 for the work he performed for the Maranzinos. Section 7-51(a) of the City of Holly Hill's Buildings and Building Regulations provides the following: (a) No person shall do any electrical construction of any character, install any electrical wiring, apparatus, or equipment or make any extensions or changes to existing systems or wiring for light, heat, power or advertising within the limits of the city, excepting the repairing of damaged or broken fixtures, apparatus or equipment and the ordinary work necessary for the proper maintenance of same without a permit issued by the electrical inspector. Permits required by this Regulation are to be obtained before the work is commenced. No electrical permit was applied for or obtained for the electrical work performed by Mr. Bennett for the Maranzinos prior to the time the work was performed. Mr. Bennett applied for and received an electrical permit for the electrical work performed by Mr. Bennett for the Maranzinos on July 29, 1987, approximately seven months after the work was completed. No inspection was requested or performed by the Chief Building Official and Zoning Enforcement Officer of the City of Holly Hill for the electrical work performed by Mr. Bennett for the Maranzinos until approximately seven months after the work was completed. According to the Chief Building Official and Zoning Enforcement Officer of the City of Holly Hill, an electrical permit should have been obtained prior to going forward with the electrical work performed by Mr. Bennett for the Maranzinos. Although he was also of the opinion that an electrical permit would not be required for installing ceiling fans (merely connecting of a ceiling fan to an existing connection), an electrical permit should have been obtained when Mr. Bennett discovered that the other types of electrical work he performed were necessary. Mr. Bennett is licensed to practice electrical contracting in thirty- eight counties in the State. Mr. Bennett was aware that an electrical permit would be required for the type of work he performed in some cities located within some of those counties. Mr. Bennett made no inquiry of building officials to determine whether an electrical permit was required for the work to be performed for the Maranzinos immediately before the work was commenced. In 1983, before moving from Broward and Palm Beach Counties to Volusia County, Mr. Bennett discussed permit requirements generally with building officials throughout Volusia County, including the Chief Building Official and Zoning Enforcement Officer of Holly Hill. This is the first time that disciplinary action has been taken against Mr. Bennett's license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Robert Bennett be found guilty of having violated Sections 489.533(1)(f) and (i), Florida Statutes. It is further RECOMMENDED that Mr. Bennett be required to pay a $250.00 fine within thirty (30) days after this case becomes final and that Mr. Bennett receive a reprimand. DONE and ENTERED this 13th day of February, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of February, 1989. APPENDIX Case Number 88-1996 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 2 3. 3 4. The initial oral contract was only for the installation of three ceiling fans and not for "some wiring". 4 8. 5 9. 6 10. 7 11. 8 13. 9 15. 10 14. 11 15. 12 12. 13 16. 14 18. 15 16. 16 8. 17 17. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2 and 20. 2 19. 3 See 4-5, 8 and 16. 4-5 Proposed finding of fact is generally correct. The weight of the evidence, however, failed to prove that Mr. Harbuck initially supported Mr. Bennett's actions because he had not paid sufficient attention to the information initially provided to him by Mr. Bennett concerning the work that was performed. Proposed finding of fact 5 is not supported by the weight of the evidence. 6 14. COPIES FURNISHED: Pat Ard, Executive Director Board of Electrical Contractors Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Jason G. Reynolds, Esquire Post Office Drawer 9670 Daytona Beach, Florida 32020 Kenneth E. Easley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
