The Issue Whether Petitioner's application for the Principles and Practice Examination has met the requirements set forth in Subsection 471.013(1)(a), Florida Statutes (2006),1 and Florida Administrative Code Rule 61G15-20.002(1)(b).
Findings Of Fact On or about April 27, 2006, Petitioner filed an application (Application) with the Board seeking to take the Principles and Practice Examination for professional engineers. Petitioner is not licensed in any other state as a professional engineer. Petitioner is a resident of Florida, who is of good moral character, and completed his bachelor's degree in electrical engineering from Ohio State University in December 1999. On August 5, 2006, Petitioner was awarded the degree of Master's of Science in Electrical Engineering from UCF. Petitioner is seeking to take the Florida Professional Engineering Examination in the area of electrical engineering. Section 7 of the Application for the Licensure by Examination directs the Applicant to do the following: List, in order, all employment experience. A minimum of four years experience must be evidenced at time of submitting your application. All engineering experience after graduation or prior to graduation shall be verified by professional or practicing engineers. Non- engineering experience or periods of unemployment shall be listed, but is not required to be verified. List employment beginning with earliest experience. Refer to attached copy of Rule 61G15-20.002. Column # 1 of Section 7 directs the Applicant to identify the Experience Number. Column # 2 of Section 7 directs the Applicant to list Dates of Employment, Month, Day, and Year. Column # 3 of Section 7 directs the Applicant to list Title of Position, Names and complete address of the firm and immediate supervisor. Column # 4 of Section 7 directs the Applicant to list Total Time in # of Months in Professional (Engineering Related) and Non-Professional (Non-Engineering Related) work. Column # 5 of Section 7 directs the Applicant to provide the following: Details pertaining to nature of work. Distinguish clearly between professional and non- professional duties and responsibilities. For each employment, describe explicitly, but concisely, the work you did and one engineering decision you were required to make. Attach exhibits as necessary. Refer to definitions in Section 471.005, Florida Statutes, and Rule 61G15, Florida Administrative Code, when defining work, see attached copy of rule. All experience, whether or not engineering, shall be accounted for on this application. (Emphasis in Original) Petitioner listed four separate professional experiences under Section 7. From August 1, 1995, to March 1, 2000, Petitioner served as a research assistant in the Electroscience Laboratory at the Ohio State University, while studying for his degree in electrical engineering. Petitioner assisted Ph.D. researchers to investigate electrical phenomena built electrical research devices, in a laboratory setting. From March 1, 2000, to March 1, 2001, Petitioner was employed as an electrical engineer for Weldon Technologies in Columbus, Ohio, where he worked on design, construction and manufacture of electrical systems for integration onto mobile devices. Petitioner worked on designs for digital systems, multiplying systems, vehicle systems, mobile vehicle response systems, emergency vehicles, and airplane/aerospace powered supply designs. From March 1, 2001, to December 1, 2001, Petitioner was employed as an electrical engineer for National Technical Systems in Foxborough, Massachusetts, where he worked to design, construct and perform electrical testing for domestic and international certification requirements and compliance verification. From December 1, 2001, to the present, Petitioner has been employed as an electrical engineer for the Harris Corporation in Palm Bay, Florida, where he works to design and analyze electrical systems for performance and qualification verification on aircraft, mobile vehicles, and space communication systems. Although staff had recommended that Petitioner's application be approved, Petitioner understood that the Board had to hear and approve the application. Petitioner completed the application form himself and felt that he had fulfilled all of the requirements set forth in the Application, including those contained in Column 5 of Section 7. Although Petitioner testified as to the details of the nature of the work he did at each of his employments after graduation, Petitioner failed to describe explicitly the work he did as required in Section 7, Column 5. Petitioner was required to describe explicitly, but concisely, one engineering decision he was required to make during the course of his employment. Petitioner failed to do so on his application or at the formal hearing. Petitioner has failed to show that he has met the requirements, set for in the Florida Statutes and in the Florida Administrative Code Rules, that he is entitled to sit for the Principles and Practice Examination for Professional Engineers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Board of Professional Engineers enter a final order denying the application of Petitioner, Larry Freeman, for application for the Principles and Practice Examination. DONE AND ENTERED this 23rd day of February, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2007.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken against the licenses of K. C. Moore as a registered builder contractor. In addition, the testimony at the hearing revealed that subsequent to the institution of this complaint that Dr. 0. Rao, M.D., did make application to the Florida Construction Industry Licensing Board for licensure as a contractor, that his application was approved, and that upon successful completion of the Board's examination he was licensed. If K. C. Moore is in fact guilty of aiding or abetting or knowingly combining or conspiring with a person to violate Part II, Chapter 468, the person with whom he combined or conspired or who he aided or abetted was Dr. John 0. Rao. Although the Board may be limited under the statutory provisions in denying Dr. Rao the license, assuming the Board rejects the Hearing Officer's Conclusions of Law and finds the facts constitute a violation of the statutory provisions, there is an absence of essential fairness to proceed against the licenses of K. C. Moore while licensing the individual with whom he contracted. The disparity in treatment of K. C. Moore and Dr. John 0. Rao is a factor which must be considered by the Board. DONE and ORDERED this 20th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 R. Stephen Miles, Jr., Esquire Mile and Cumbie Post Office Box 517 Kissimmee, Florida 32741 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner,
The Issue The issue is whether Petitioner is qualified for certification of qualification for licensure as a professional engineer by endorsement, pursuant to section 471.015(3), Florida Statutes.
Findings Of Fact In 1982, Petitioner earned a bachelor's degree in construction engineering from Florida International University. Petitioner does not have a doctorate in engineering. On June 24, 2009, the state of North Carolina issued Petitioner a license as a professional engineer. This is his only professional engineer license. Because Petitioner had over 20 years' progressive experience on engineering projects acceptable to the North Carolina State Board of Examiners for Engineers and Surveyors, he was eligible for a professional engineer license by, among other things, passing Part II of the National Council for Examiners of Engineering and Surveying (NCEES), which is also known as the Principals and Practices Examination. Due to his experience, North Carolina did not require Petitioner to pass Part I of the NCEES, which is also known as the Fundamentals Examination. By application dated August 27, 2009, Petitioner applied for Florida licensure by endorsement as a professional engineer. Ultimately, Respondent declined to certify to the Florida Engineers Management Corporation the application for licensure by endorsement because Petitioner had not passed Part I of the NCEES. Except for not having passed Part I of the NCEES examination (or, if applicable, not having met one of the other two alternatives set forth in section 471.015(5)(a), as discussed in the Conclusions of Law), Petitioner otherwise meets the education and experience requirements set forth in section 471.013(1), Florida Statutes, for certification for licensure by endorsement.
Recommendation It is RECOMMENDED that the Board of Professional Engineers enter a final order denying Petitioner's application for certification of qualification for licensure by endorsement. DONE AND ENTERED this 11th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 11th day of July, 2011. COPIES FURNISHED: Michael Todd Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kristine M. Johnson, Esquire 10620 Griffin Road, Suite 106-B Cooper City, Florida 33328 Carrie A. Flynn, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 John Rimes, Esquire Chief prosecuting Attorney Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is now, and has been since 1982, a general contractor licensed to practice in the State of Florida. He holds license number CG C020528. At all times material hereto, Respondent has been licensed as an individual general contractor, rather than as a qualifying agent for any business entity. 1/ Respondent is now, and has been at all times material hereto, the President of Michelle Construction Corp. (MCC). On or about November 29, 1987, MCC, through Respondent, entered into a written contract with Henry Rodriguez and his wife Patricia, in which MCC agreed, for $30,000.00, to remodel the Rodriguez residence located at 9139 S.W. 69th Court in Miami, Florida. The work to be performed by MCC included, among other things, renovating the residence's two bathrooms, replacing most of the existing roof, doubling the size of the kitchen, and adding to the residence a back porch, living room, dining room, and master bedroom with a bathroom and walk-in closet. Respondent was to prepare the plans for the project. The $30,000.00 contract price was exceptionally low for the type of work that was the subject of the contract. On December 12, 1987, Respondent, using his general contractor's license, obtained a building permit from the Metro-Dade County Building and Zoning Department to perform the work specified in the contract. Shortly thereafter, work began on the project. Although he hired Paulino Hernandez to serve as the project foreman, Respondent retained overall supervisory responsibility for the project and visited the worksite on various occasions. Work on the project proceeded slowly. Changes had to be made to the plans originally prepared by Respondent because they were infeasible. Furthermore, the project was underfinanced, notwithstanding that Mr. and Mrs. Rodriguez made payments in accordance with their contractual obligations. MCC last performed work on the Rodriguez residence on August 25, 1988. At the time it stopped working on the project, the project was not complete. To this date, it remains unfinished, despite Mr. Rodriguez's efforts to have MCC fulfill its obligations under the contract. Among those portions of the project that MCC failed to complete was the roofing work described in the contract. Following MCC's abandonment of the project, Mr. Rodriguez contracted with Trans Continental Coating Co., Inc., to install over the entire residence a "Foamed-In-Place Urethane Insulated Roof and an elastomeric coating system" for $10,000.00. The work that MCC and/or its subcontractors did perform in furtherance of its contract with Mr. and Mrs. Rodriguez was, at least in part, shoddily done in a manner reflecting either gross negligence or incompetence on the part of the workers who performed the work and those that supervised them. For example, the floors in the dining room and living room additions to the house were not level. Neither were the ceilings in the new master bedroom. Furthermore, the tiles that MCC installed were irregular and had depressions in them. Moreover, the dining room addition was several inches out of square. The paint that had been applied to the exterior of the Rodriguez home as part of the project was already peeling off at the time MCC abandoned the project. Mr. and Mrs. Rodriguez had it repainted by Transcon Painting Co. at a cost of $1,900.00. Mr. and Mrs. Rodriguez had paid MCC in excess of $30,000.00 at the time of MCC'S abandonment of the project. Initially payments were made to MCC or Respondent. Subsequently, in an effort to expedite the completion of the project, Respondent authorized Mr. and Mrs. Rodriguez to make payments directly to the job foreman, Hernandez, which they did. Hernandez was to use the money he received from Mr. and Mrs. Rodriguez to pay for the labor and supplies necessary for the project. Although Mr. and Mrs. Rodriguez paid the contract price in full, MCC and Respondent lost money on the project. Respondent has not been the subject of any prior disciplinary action by the Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Respondent guilty of the violations of Section 489.129, Florida Statutes, charged in the instant administrative complaint and suspending Respondent's license for a period two months and imposing upon him a fine in the amount of $3,000.00 for having committed these violations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of November, 1990. STUART M. LERNER 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 day of November, 1990.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations set forth in the parties' February 7, 2005 Joint Prehearing Submission2: Respondent and his father are the principal owners of J.G.P. Engineering Group P.A. (JGP), an engineering firm specializing in the design of mechanical, electrical, and plumbing systems. JGP does mainly "high end projects." It has offices in Miami, Florida, and San Juan, Puerto Rico. Respondent is in charge of JGP's Miami office. The office is located at 9300 Northwest 25th Street, Suite 207. Before moving to this location, JGP occupied Suite 210 in the same building. In or around the mid-1990's, Orlando Naranjo was invited to work as an electrical engineer for JGP in its Miami office. Mr. Naranjo wanted to remain self-employed, so he turned down the offer; however, his firm and JGP subsequently worked collaboratively on "quite a few projects." Mr. Naranjo's firm and JGP were "doing so much work [together] requiring significant coordination" that in or around 1998, Mr. Naranjo decided "to move [his office to 9300 Northwest 25th Street, Suite 209] next to [JGP's office]." Mr. Naranjo's office was at this location (9300 Northwest 25th Street, Suite 209) at all times material to the instant case. On September 20, 2001, Mr. Naranjo's license to practice engineering in the State of Florida (which was then under suspension) was revoked by the Florida Board of Professional Engineers (Board). The suspension and revocation resulted from Mr. Naranjo's having failed to have taken the necessary steps to renew his license in a timely manner. Mr. Naranjo did not become aware of the Board's revocation action until "some time later," around or before the Thanksgiving holiday (that same year). Upon learning that his license had been revoked, Mr. Naranjo began the process of attempting to become relicensed. Mr. Naranjo's office (at 9300 Northwest 25th Street, Suite 209) remained open, and his firm continued to engage in business, following the revocation of his license and during the time that he was seeking relicensure. Mr. Naranjo recognized that, until he got his license back, he would be unable to sign and seal documents and otherwise act as the "engineer of record" on projects. Mr. Naranjo therefore asked Respondent to help him by assuming the role of "engineer of record" on projects that Mr. Naranjo had been working on but had not yet completed. As a favor to Mr. Naranjo, Respondent agreed to do so without compensation. Among the projects of Mr. Naranjo's that Respondent undertook responsibility for were (what the parties have referred to in their February 7, 2005, Joint Prehearing Submission as) the Toras Emes project (TE Project) and the Manatee Village at Ruskin project (MV Project). "[C]ompared to the jobs that [JGP] had done with [Mr. Naranjo] in the past, these two jobs . . . [were] relatively straightforward." The TE Project involved design work for a dormitory facility consisting of "individual dormitory rooms, a hallway [connecting] them, and a common bathroom [with] showers and stalls for the people [living] in the dormitory." The architectural firm that hired Mr. Naranjo to work on the TE Project was Gustavo J. Ramos and Associates, Inc. (Ramos). Ramos had a contractual relationship with, and paid, Mr. Naranjo, not Respondent, for the work done on the TE Project. The MV Project involved design work for a residential housing development consisting of four types of "small apartment units [having] one or two bedrooms." The architectural firm that hired Mr. Naranjo to work on the MV Project was R.E. Chisholm Architects, Inc. (Chisholm). Chisholm had a contractual relationship with, and paid, Mr. Naranjo, not Respondent, for the work done on the MV Project. The MV Project required "relatively little" work since approximately "99% [of the plans that had been developed for use in a previous project] were reused" for this project. Assisting in the preparation of the plans for the TE Project and the MV Project were Mr. Naranjo's employees, Pablo Viteri and Antia Rodriguez, who (unlike Respondent) were paid by Mr. Naranjo for their efforts in connection with the projects. Mr. Viteri and Ms. Rodriguez served as draftspeople on these projects, drafting in accordance with the directions they received, as did Mr. Naranjo after he had relinquished his role as "engineer of record" on these projects (and Respondent had started "running the show"). In addition to the drafting work he did, Mr. Viteri was regularly "in touch" with the "people who were involved [o]n the architectural side" of the projects to "coordinate" with them. Mr. Viteri became a Florida-licensed professional engineer in the "beginning of 2003." (He is currently employed by JGP as an electrical engineer and computer-aided design manager.) Ms. Rodriguez was an engineer in her native country, but has not obtained a license to practice engineering in the State of Florida. Mr. Viteri, Ms. Rodriguez, and Mr. Naranjo, at all times material to the instant case, worked (on the TE Project and the MV Project ) out of Mr. Naranjo's office at 9300 Northwest 25th Street, Suite 209, which outside its front door had a sign which read: N+A NARANJO+ASSOCIATES Mechanical·Electrical Consulting Engineers #209 The sign had been there since the time Mr. Naranjo had moved into the office. It remained on the door even though Mr. Naranjo's license had been revoked and he was no longer authorized to engage in the practice of engineering in the State of Florida. The purpose of the sign was not to advertise, but to identify who occupied the office. Following his agreement to help Mr. Naranjo, Respondent exercised complete supervision, direction, and control of all engineering aspects of the TE Project and the MV Project, including the preparation of the engineering plans for these projects (that he signed and sealed). Upon assuming the role of "engineer of record" on these projects, Respondent first reviewed the design work that had been done prior to his involvement in the projects to determine if the "quality and validity" of the work met his satisfaction. After completing this review, Respondent oversaw the completion of the design work, making all necessary engineering decisions. Respondent had discussions with Mr. Viteri, Ms. Rodriguez, and Mr. Naranjo about the remaining work that needed to done and gave them instructions and directions on the drafting they were to do. Respondent reviewed their finished work product to make sure that it was consistent with the instructions and directions he had given them. Only after he was satisfied that there was such consistency and that the drafting that had been done accurately reflected the engineering decisions he had made did Respondent sign and seal the plans for the projects. The title block on these plans identifying Respondent as the projects' mechanical engineer listed his address as 9300 Northwest 25th Street, Suite 209, Miami, Florida (which was the address of Mr. Naranjo's office) and his telephone number and fax number as (305) 599-9447 and (305) 599-9427, respectively (which were the telephone number and the fax number for Mr. Naranjo's office). All engineering documents related to the projects were kept, not in Respondent's office, but in Mr. Naranjo's office (where Mr. Naranjo, Mr. Viteri, and Ms. Rodriguez worked) so as to not inconvenience Mr. Viteri, who needed to have ready access to these documents on a regular basis given that he was the "person who had the direct day-to-day contact" with the project architects. Likewise, the calculations done for the TE Project were on a computer in Mr. Naranjo's office. Any documents or information that Respondent needed to fulfill his responsibilities as the "engineer of record" on the TE Project and the MV Project he could retrieve with relative ease from Mr. Naranjo's office, which was just a short distance from his office. At no time did Respondent attempt to conceal from anyone the nature and extent of his involvement in the TE Project and the MV Project, nor did he have any intent to assist Mr. Naranjo in the unlicensed practice of engineering. Respondent has never before been disciplined by the Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a final order dismissing all four counts of the Administrative Complaint issued against Respondent. DONE AND ENTERED this 5th day of April, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 2005.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints involving violations of the requirements of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Florida Statutes. Pursuant to Section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set out in that section. At all times material to this case, Mr. Vega was a certified general contractor operating under a license issued by the Construction Industry Licensing Board, numbered CG C046448. Mr. Vega has been a licensed general contractor in Florida since 1989, and since 1994, he has been the licensed qualifying agent for Group Construction South Florida, Inc. The residence of David M. Hudson, located at 19801 Southwest 84th Avenue, Miami, Dade County, Florida, was severely damaged in August, 1992, by Hurricane Andrew. In a letter dated October 13, 1992, Mr. Hudson, who holds a doctorate in biology and is the laboratory manager for the University of Miami Chemistry Department, proposed to Mr. Vega that he prepare plans for reconstructing the Hudson residence. On December 23, 1992, Mr. Hudson and Mr. Vega executed a contract for construction work to be performed on the Hudson residence. The parties contemplated that Mr. Vega would complete the work in accordance with the drawings and original blueprints prepared by Jose A. Sanchez, a structural engineer, at Mr. Vega's direction and based on preliminary plans approved by Mr. Hudson. Specifically, Mr. Hudson understood that the major elements of construction included in the December 23 contract were elevation of the house from one story to two stories, construction of a new living area on the second floor, and construction of a basement on the first floor to serve as a "bare bones storage area." The contract price specified in the December 23 contract was $146,338.33, with ten percent due upon acceptance of the proposal, ten percent due at completion of each of eight items of construction specified in the contract, and ten percent due upon completion of the project. The eight items of construction specified in the contract were "demolition work, rising work, tie beams, roof, doors & windows, plaster & tile, pool & fence, finish work and paint." On February 1, 1993, Metropolitan Dade County Building and Zoning Information Department issued Permit Number 93119957 to Mr. Vega for the Hudson project. The building permit was based on the original plans for the project submitted by Mr. Vega on January 19, 1993, together with some items that were added to the plans at the county's request. Mr. Vega began work on the project on February 1, 1993, the day the permit was issued. Mr. Vega hired Ruben Armas to act as foreman for the project, and his duties included hiring and supervising day laborers and procuring materials needed for construction. At the time, Mr. Armas was not licensed, registered, or certified by either Dade County or the State of Florida. Mr. Vega had an arrangement with Mr. Armas whereby he paid Mr. Armas periodic advances on a lump sum payment that Mr. Armas was to receive when the Hudson project was complete. Mr. Vega did not deduct FICA or withholding tax from the payments made to Mr. Armas under this arrangement. Mr. Vega dealt directly with Mr. and/or Mrs. Hudson regarding the project, although they would occasionally leave messages for him with Mr. Armas. Mr. Vega directly supervised Mr. Armas and gave him instructions on the work that was to be performed and the way it was to be done. Mr. Vega was routinely at the job site at least two or three times a day to inspect the work that had been done. Mr. Vega was present at the site during the entire time that cement was poured for footings or other structural elements. Mr. Vega arranged for various subcontractors to work on the project, including electricians, plumbers, air conditioning workers, roofers, carpenters, and drywall hangers. On April 14, 1993, a Department investigator conducted an inspection of the Hudson project during a "hurricane task force sweep." When she and the other members of the task force arrived on the job site, she observed Mr. Armas and two other men "inside working," but she did not observe them working or see the type of work they were doing. Mr. Armas walked out to meet the inspector and gave her a card that contained his name and phone numbers and the words "General construction & roof repair." Mr. Armas told the Department investigator that, when she arrived, he was "working on the footing for the elevation of the house." On April 21, 1993, Mr. Vega signed a Cease and Desist Agreement in which he acknowledged that the Department was investigating allegations that he had "engaged in the practice of aiding and abetting unlicensed contractor Ruben Armas." By signing the agreement, Mr. Vega agreed to cease "engaging in this activity," but he did not admit that the Department's allegations were true. The Department investigator was at the Hudson job site on April 14, 1993, for thirty minutes to an hour, during which time Mr. Vega did not appear at the site. This was the only time she was at the job site while work was being done. As the work progressed on the project, everything appeared to be going well, and Mr. Vega felt that he enjoyed a very good working relationship with Mr. and Mrs. Hudson. Mr. Hudson paid Mr. Vega a total of $116,400.00, or eighty percent, of the original contract price of $146,338.33, in ten percent increments as provided in the contract. By check dated December 23, 1992, Mr. Hudson paid the down payment of $14,633.38. By check dated February 5, 1993, Mr. Hudson paid $14,600.00 upon completion of the demolition work. By check dated March 5, 1993, Mr. Hudson paid $14,633.00 upon completion of raising the structure to two stories. By check dated March 24, 1993, Mr. Hudson paid $14,633.00 upon completion of the tie beams. By check dated April 19, 1997, Mr. Hudson paid $14,633.00 upon completion of the roof. By check dated May 13, 1993, Mr. Hudson paid $14,633.00 which should have been paid upon completion of the doors and windows but which he paid even though the installation of the doors and windows was not complete. By check dated June 23,1993, Mr. Hudson paid $12,000.00 of the $14,633.00 draw because, in his opinion, the project was not being completed on schedule. Finally, by check dated July 2, 1993, Mr. Hudson paid $17,000.00 to bring the payments up to the amount consistent with the contract schedule for completion of the pool and fence. In a letter to Mr. Vega dated June 7, 1993, Mr. Hudson stated that he wanted to make "a major change" in the plans. Specifically, Mr. Hudson wanted to eliminate the swimming pool, which he estimated would save $20,000.00 of the $146,633.00 contract price, and use the money saved "to completely finish the downstairs to be a nice guest area," to "install the better quality carpet we want, complete wooden fence, air conditioning in 1st floor, plumbing ~ electric in 1st floor, [and] indoor wooden shutters for all windows." Mr. Hudson went on to state that he wanted certain enumerated appliances, which would cost $4,108.00, and new furniture, which he estimated would cost $6,000.00, for a total of $10,108.00. According to Mr. Hudson's proposal, Mr. Vega should be able to "finish off the 1st floor the way we want it, install the nice carpet and tile, and do all the other jobs previously listed (fence, plumbing, etc., for 1st floor) for about $10,000.00." The basement area which Mr. Hudson wanted to finish as a "nice" living area consisted of approximately 2,000 square feet and had originally been designed as a storage area, with concrete floor and walls. Mr. Vega and Mr. Hudson discussed the proposal and the costs of the changes, but they did not reach an agreement on the cost of the additional work. 3/ Mr. Hudson asked Mr. Vega to leave the job site and cease work on the project on or about July 3, 1993, and Mr. Vega did not perform any work on the Hudson residence after this time. Mr. Hudson terminated Mr. Vega from the project solely because of the dispute with Mr. Vega over the cost of the changes he had requested in his June 7 letter. Mr. Hudson did not complain to Mr. Vega about the quality of the work that had been completed, and, although he thought that the project was getting behind schedule, Mr. Hudson issued a check dated July 2, 1993, which brought the total payments to eighty percent of the original contract price. When Mr. Vega stopped work on the project, the structure contained deviations from the original plans. 4/ Some of the deviations were items shown in the original blueprints which had not been incorporated into the structure; some were items that were not shown in the original blueprints but were incorporated into the structure at the request of, or with the approval of, Mr. and/or Mrs. Hudson; some were deviations in the size of openings to accommodate doors and in the location and size of windows; most were minor deviations in the placement of electrical switches and receptacles or other similar deviations. The construction was, however, generally consistent with the original plans. 5/ There were three items that were significant deviations from the original plans. The most serious deviation concerned the changes made in the dimensions of the structural slab that formed the floor of the second floor balcony off the family room, kitchen, and dining room and the roof of the first floor terrace. The original plans included a second floor balcony with a width of six feet. The Hudsons asked Mr. Vega to increase the width of the balcony, and Mr. Vega called Mr. Sanchez, the structural engineer who had prepared the original plans, and asked if the width of the slab could be increased. Mr. Sanchez approved an extension from the original six feet to eight feet, eight inches, and he advised Mr. Vega of the additional reinforcement that would be needed to accommodate the increased width. On the basis of Mr. Sanchez's approval, Mr. Vega incorporated the additional reinforcement specified by Mr. Sanchez and poured the slab to the requested width of eight feet, eight inches. Even though Mr. Vega consulted a structural engineer, he did not submit revised blueprints to the building department and obtain approval for the structural change before doing the alteration. He was aware that the building code required approval before such a change could be incorporated into a structure and that his actions violated the code. 6/ The second significant deviation from the original plans was Mr. Vega's failure to construct the fireplace shown in the original plans. According to the plans, a fireplace was to be constructed in the living room, on the second floor. Although the roof was completed and the drywall installed, no accommodation had been made for the fireplace in either the wall or the roof. Mr. Vega intended to construct the fireplace and would have done so had he not been told to cease work on the project. The third significant deviation from the original plans concerns the windows installed in the structure. No window permits or product approvals were contained in the permit file for the Hudson project. In addition, some of the windows were not the size specified in the original plans, some were too deep, and some were placed lower than the thirty inch sill height specified in the original plans. Many of the items identified as "deviations" were actually items not shown on the original plans but incorporated into the structure at the request of, or with the approval of, Mr. and/or Mrs. Hudson. Neither the requests for the additional items nor the costs of the items were reduced to writing by Mr. Hudson or Mr. Vega. At the time Mr. Hudson directed him to cease work on the project, Mr. Vega had contracts with subcontractors to provide the labor and materials specified in the original contract. He was prepared to complete the project in accordance with the original plans and for the original contract amount, with adjustments for the extras that had already been incorporated into the project at the request of, or with the approval of, Mr. and/or Mrs. Hudson. He was also prepared to correct all deficiencies and code violations in the structure. After he was terminated from the project, Mr. Vega continued to negotiate with Mr. Hudson's attorney to arrive at an agreement for completion of the project that would be satisfactory to Mr. Hudson. In a proposal submitted to Mr. Hudson's attorney in the fall of 1993, Mr. Vega offered to complete the project in seven weeks in accordance with the original plans, as modified to incorporate the changes and upgrades Mr. Hudson had requested in the June 7 letter and the changes and upgrades that had already been incorporated into the project at the request of, or with the approval of, Mr. and/or Mrs. Hudson. The total price for completion proposed by Mr. Vega was $56,750.00, which included the cost of the upgrades and extras and the $29,572.00 balance owing under the original contract. Mr. Hudson did not accept this proposal. Instead, he eventually hired a contractor named Robert Krieff, who did some work on the project. In February, 1994, Mr. Hudson took over the building permit himself and hired various subcontractors to work on the project. According to Mr. Hudson, in addition to the $116,400.00 he paid Mr. Vega, he has paid approximately $50,000.00 for work done after he terminated Mr. Vega, and he anticipates spending another $35,000.00 before a Certificate of Occupancy is issued. Mr. Hudson paid off a lien on his property for work done pursuant to his contract with Mr. Vega. A Claim of Lien in the amount of $4,712.00 was filed by Luis A. Roman on October 5, 1993, for drywall hung and finished at the Hudson residence under an arrangement with Mr. Vega. Summary of the evidence. The evidence presented by the Department is sufficient to establish that Mr. Vega willfully violated the building code with respect to the alteration of the width of the second floor balcony. Mr. Vega admitted that he knew he was violating the building code when he extended the width of the second floor balcony beyond the width specified in the original blueprints before submitting revised engineering plans to the county and receiving approval to make the alteration. This violation is one of procedure only, however, and there was no competent evidence presented to establish that Mr. Vega failed to include adequate reinforcement to compensate for the additional width prior to pouring the slab or that there were structural problems with the slab. 7/ The evidence presented by the Department is sufficient to establish that Mr. Vega violated the building code because the work completed by Mr. Vega on the Hudson project contained deviations from the original approved plans. 8/ On the other hand, the evidence presented by the Department is sufficient to establish that this violation is a minor one. The Department's experts testified that the construction done on the Hudson residence by Mr. Vega was generally consistent with the approved plans and that it was commonplace for contractors in Dade County to deviate from the approved plans and later submit revised plans for approval. The evidence presented by the Department is sufficient to establish that Mr. Vega did not file product approvals or obtain window permits prior to windows being installed in the Hudson project. The evidence presented by the Department is not sufficient, however, to establish that these omissions on Mr. Vega's part constituted a violation of section 204.2 of the South Florida Building Code, as alleged in the Administrative Complaint. Although there was some testimony that the building code requires that product approvals be filed and window permits obtained before windows are installed, the applicable code and section were not identified by the Department's witnesses or otherwise made a part of the record. Thus, there is no evidence of the precise obligations imposed on Mr. Vega by the code that was applicable at the time of the Hudson project. As a result, it is not possible to determine whether Mr. Vega fulfilled his obligations under the code. The evidence presented by the Department is not sufficient to establish that Mr. Vega assisted Mr. Armas in engaging in the unregistered or uncertified practice of contracting. There is no evidence in the record that Mr. Armas performed any work on the Hudson project that could be performed only by a licensed contractor. 9/ Notwithstanding the opinions stated by the Department's experts, the evidence presented by the Department is not sufficient to establish that Mr. Vega is guilty of incompetence or misconduct in the practice of contracting as a result of the work done on the Hudson project. The evidence presented by the Department is sufficient to establish that Mr. Hudson suffered financial loss in the amount of $4,712.00, which is the amount Mr. Hudson paid to clear the lien placed on his property by Luis A. Roman. Although this loss is attributable to Mr. Vega's failure to pay Mr. Roman for hanging and finishing drywall in the Hudson residence, the evidence presented by the Department is not sufficient to establish that Mr. Hudson suffered financial loss as a result of the violation with which Mr. Vega was charged and of which he was proven guilty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order dismissing Counts I and III of its Administrative Complaint, finding that Gonzalo Vega is guilty of violating section 489.129(1)(d), Florida Statutes (1993), and imposing an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 3rd day of July, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1997.
Findings Of Fact On June 3, 1956 Petitioner received his degree of Bachelor of Science in Mechanical Engineering from the University of Oklahoma. In 1956 Petitioner took and passed a fundamentals of engineering examination in Oklahoma. This was in furtherance of his licensure as an Engineer-in-Training. It dealt with basic engineering subjects. He also took a principles and practice examination in that year in Oklahoma. The fundamentals of engineering examination was Part I and the principles and practices examination was Part II. The State Licensing Board in Oklahoma did not recognize the results of Part II. As Petitioner explains it, based upon his understanding of the circumstances, that state had revised its laws pertaining to licensure of engineers in 1961. In 1960, to his understanding, those changes were in the draft form concerning the legislation. The changes that were brought about in 1961 required that a candidate for licensure have four years of experience before he or she would be able to stand a mandatory principle and practices Part II portion of an examination process. Because Petitioner had not gained four years experience before standing examination on principles and practices Part II the licensing authority in Oklahoma removed the reference to Petitioner's successful completion of the principles and practices Part II portion of the examination. Moreover it does not appear that candidates for licensure as professional engineers when Petitioner received his certificate of registration as a professional engineer granted by the State of Oklahoma on May 13, 1960 had to stand an examination before receiving that license. Prior to the receipt of registration as a professional engineer and following his graduation from the University of Oklahoma, Petitioner had held the Engineer-in-Training License. Petitioner had not received his professional engineer's registration in 1956 because the State of Oklahoma required a minimum three years of professional experience after graduation from engineering school before it would grant that registration. The verification of registration form that was completed by the Oklahoma Board of Engineering indicated that the Petitioner's registration as a professional engineer was based upon five years of formal education in his engineering course work, an examination associated with a license as Engineer- in-Training, and three years of work experience beyond that five year course. Records of the licensing authority in Oklahoma have not shown the Petitioner as having taken a professional engineer's examination as contrasted with his examination for an Engineer-in-Training license. Further, Petitioner is without tangible evidence that he stood the principles and practices portion Part II, as part of a professional engineer's examination in Oklahoma. After graduation, Petitioner worked for Continental Oil Company, Poncaca City, Oklahoma from June, 1956 until October, 1957 in a position whose title was automotive engineer. In this employment he designed special equipment for different departments within that company. This included all terrain vehicles for seismograph work and heavy duty trucks to haul drilling rigs. It involved design of seismographs and a shaker that was intended to replace drilling a hole and shooting dynamite charges. From October, 1957 until February, 1958 Petitioner worked as a sales engineer for Parkersburg Refrigeration and Reel Company in Oklahoma City, Oklahoma. This work was involved with a pumping unit that had gear systems in it. The pump had to be designed economically. The pump had to be designed to withstand a certain amount of torque. If a system was too large for a well then it cost the customer money. If it was too small it would strip the gears. A piece of equipment also involved beams. It included a sucker rod strain that had to be sized so that it did not overly stretch as the pump lifted. There was a concern that the design be such that it would not achieve harmonic balance causing a bungee cord effect. This experience involved picking pump sizes or specific pieces of equipment and matching those with the client's or customer's needs. One had to be careful about the sucker rod size in that the rod was introduced two miles into the earth to lift oil. From January, 1959 until July, 1960 Petitioner worked at the Oklahoma City Air Defense Station in Oklahoma City, Oklahoma in a position entitled mechanical engineer (general). This work involved designing a maintenance program for mechanical equipment in diesel electric generating plants. From August, 1960 until October, 1963 Petitioner held the position of employment as a mechanical engineer (diesel). This was in association with the headquarters of the Air Defense Command, Ent Air Force Base, Colorado Springs, Colorado. In this assignment he worked in 138 different stations as opposed to 11 stations in the prior position he held. In addition to working to design maintenance programs, he also was involved in work on overhauls by designing a program for determining when overhauls were necessary on the diesel electric generators. Petitioner was also a trouble shooter. If there was trouble with a unit, others would send the Petitioner to the station and he would analyze the problem and recommend necessary corrective action. Petitioner prepared programs and told mechanics what to do in the way of maintenance. From November, 1963 until November, 1985 Petitioner was employed as a consulting engineer and general contractor for Jack Stout Engineering and Construction Company in Yukon, Oklahoma. The engineering portion of this enterprise had to do with designs of varying kinds. As to things built by his company, this included buildings, building foundations, and building trusses. It also included electrical systems, plumbing systems and mechanical systems. Those latter items were required to be done by a professional engineer in Oklahoma during the period in question, in those instances involving public access whether into private or public buildings. During Petitioner's association with Jack Stout Engineering and Construction Company, approximately 50% of his time was spent as a consulting engineer and the other 50% as a general contractor. In the period November, 1985 until August, 1989, Petitioner was still associated with Jack Stout Engineering and Construction Company as a consulting engineer and contractor; however, he had moved to Port Mansfield, Texas. At this point Petitioner did some professional engineering work in Oklahoma even though he was residing in Texas. Petitioner indicated that he obviously did not do as much work as a professional engineer while residing in Texas. The engineering work that he did in Texas proper was not of a professional level. The work in Texas involved redesigning boats. From the period August, 1989 until April, 1991, Petitioner worked as a real estate salesman for Heritage Realty in Tallahassee, Florida. He has done some professional engineering work in Oklahoma while residing in Florida, but not as much as when he lived in Oklahoma. Dr. Robert Kersen who holds a baccalaureate degree, masters degree, and doctorate in civil engineering, testified concerning which activities constitute the practice of engineering. Among the positions which Dr. Kersen has held which would give him insight in commenting on engineering practice was that of Dean of the Engineering School at the University of Central Florida. He was dean for approximately 20 years. This gave him the occasion to evaluate individuals concerning their engineering backgrounds. In addition he served on the State Board of Engineers in Florida for about 6 years and was on the application committee which allowed him to review candidate files for licensure that came before the State Board of Engineers. In particular he has had the opportunity to investigate background experience of those candidates. Given his credentials, Dr. Kersen was qualified as an expert to state his opinion, to comment on the nature of activities that would constitute the practice of engineering. As established by Dr. Kersen, the prime function of an engineer is to devise the system, components, structure, machine, or whatever item, according to sound engineering principles and standards of practice. By contrast, contractors are responsible for building, constructing, and erecting structures according to the engineer's plan. Notwithstanding the distinction between the activities of engineers and contractors, it has been the custom and practice of the Board of Professional Engineers in Florida, to Dr. Kersen's knowledge, to accept contracting experience in lieu of engineering experience in satisfying engineering experience requirements for licensure. That experience in contracting is discounted by 50%. This concept is reasonable and is accepted. Applied to Petitioner's experience while working with Jack Stout Engineering and Construction Company in Yukon, Oklahoma in the period November, 1963 until November, 1985, Petitioner would be entitled to 11 years credit as an engineer and five and one-half years credit as a contractor, for a total of 16 1/2 years in that work cycle. This experience when added to the other positions which Petitioner held from June, 1956 until November, 1963 gives Petitioner approximately 24 years of continuing engineering experience. The period beyond November, 1985 until August, 1989 constituting approximately three and one-half years additional experience is unclear concerning which portion was associated with professional engineering, contracting and engineering practice not of a professional level. In any event, even should the Petitioner be credited with that latter period, the total amount of continuous work as an engineer from June, 1956 until August, 1989 would be slightly in excess of 27 1/2 years. Petitioner's explanation of the period of August, 1989 through April, 1991 did not clearly identify the portion of his time which was spent in engineering practice as opposed to what appears to be his principal employment as a real estate salesman and he is not credited for that period.
Recommendation Upon consideration of the facts found and the conclusions of law reached it RECOMMENDED: That a Final Order be entered which denies the application for licensure by endorsement. DONE and ORDERED this 4th day of November, 1992, in Tallahassee, Florida. CHARLES C. ADAMS, 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 4th day of November, 1992. APPENDIX CASE NO. 92-3635 The following discussion is given concerning the fact finding proposed by the parties: Petitioner's Proposed Findings of Fact. Petitioners facts were presented together with his legal argument in such a manner as to not allow specific discussion concerning those proposed facts. Respondent's Proposed Findings of Fact. Paragraphs 1 through 4 are subordinate to facts found. Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 through 14 are subordinate to facts found. Paragraph 15 is not necessary to the resolution of the dispute. Paragraphs 16 through 18 are subordinate to facts found. Paragraph 19 does not change the impression of the work which Petitioner did which has been credited as engineering work. Paragraph 20 is not necessary to the resolution of the dispute. COPIES FURNISHED: Jack L. Stout No. 229 2775 Jewel Drive Tallahassee, FL 32310 and 916 North Gadsden Street Tallahassee, FL 32301 Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol Tallahassee, FL 32399-1050 Angel Gonzalez, Executive Director Department of Professional Regulation Board of Engineers 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
