The Issue Whether Petitioner is eligible for licensure by endorsement as a professional engineer and/or waiver of Part I of the engineering licensing examination.
Findings Of Fact From 1969 through 1974, Petitioner attended the Lipetsk Branch of the Moscow Institute of Steel and Alloys. In 1974, Petitioner graduated from the Lipetsk Polytechnical Institute (Institute) in Russia, with a degree in industrial and civil engineering. The degree in civil engineering earned by Petitioner is equivalent to a bachelor of science degree in civil engineering in the United States. Upon graduation from the Institute, Petitioner commenced her professional employment as an engineer on August 30, 1974, at the LIPTSKGRAZHDANPROEKT Design Institute. In January 1976, Petitioner was employed as a professional engineer at the State Design Institute DNEPRPROEKKTSTALKONSTRUKSIYA (DNEPR), where she was continuously employed until leaving the Soviet Union in December 1993. There are no specific licensing or registration requirements in Russia with respect to engineers. Therefore, after earning a degree in industrial and civil engineering, Petitioner could work as an engineer in Russia without taking any professional examination. However, in 1979, Petitioner took an examination in Russia that allowed her to sign her own drawings and calculations. During Petitioner's tenure at the DNEPR, she achieved the status of Senior Engineer in 1986; was promoted to the position of Category II Engineer for Steel Structures in 1988; was promoted to the post of Category I Engineer for Steel Structures in 1990; and was elevated to the position of Leading Engineer in 1991. To achieve the status of Category II Engineer for Steel Structures and Category I Engineer for Steel Structures at DNEPR, Petitioner had to take an examination in 1988 and in 1990, respectively. The promotion to each of these positions was predicated upon Petitioner's passing these examinations and demonstrating expertise in the areas of economics, chemistry, mathematics, physics, building materials, corrosion prevention, resistance of materials, and construction mechanics. As a result of passing the examinations in 1988 and 1990, Petitioner was not only promoted, but also received salary increases. Petitioner believes that the two examinations she took in Russia in 1988 and in 1990, while working at the DNEPR were substantially equivalent to the Fundamentals Examination. However, no evidence was presented to support this claim. The Fundamentals Examination is one component of the engineering licensing examination, and is designed to assess whether an individual is qualified to practice in this state as an engineer intern. This examination is usually taken either in the applicant's last year in engineering school or shortly after graduation. With regard to format, the Fundamentals Examination is an eight-hour examination and consists of 120 multiple-choice questions. The Principles and Practice Examination is the second part of the engineering licensing examination and is taken after successful completion of the Fundamentals Examination. Oscar E. Olsen, a structural engineer and owner of O.E. Olsen and Associates, a structural engineering firm, is currently Petitioner's employer. Mr. Olsen, who is generally familiar with the Fundamentals Examination, testified that the list of subjects covered on the two examinations taken by Petitioner in 1988 and 1990, coincide with the subject matter on the Fundamentals Examination. Mr. Olsen further testified that it appeared to him that the two examinations taken by Petitioner were comparable to the Fundamental Examinations required in Florida. Notwithstanding his testimony that the exams taken by Petitioner are substantially equivalent to the Fundamentals Examination, Mr. Olsen admitted that he has never seen or reviewed the examinations taken by Petitioner while she was in Russia. It is impossible to render a reasonable opinion as to whether the two examinations taken by Petitioner in Russia are substantially equivalent to the Fundamentals Examination, where the only information provided with regard to the former is a list of subject areas covered. Such a list gives no indication of the depth and specific content of the subject matter on the examinations; the difficulty of the examinations; the passing scores; the number and format of the questions; and the length of the examinations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, the Board of Professional Engineers, enter a Final Order denying Petitioner's request for waiver of Part I, the Fundamentals Examination, and for licensure by endorsement. DONE AND ENTERED this 9th day of December, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 9th day of December, 1997. COPIES FURNISHED: Murray Silverstein, Esquire Powell, Carney, Hayes, and Silverstein One Plaza, Suite 1210 St. Petersburg, Florida 33731-1689 Edwin A. Bayo Assistant Attorney General Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 Angel Gonzalez Executive Director Board of Professional Engineers Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0755 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner’s application for a certified building contractor’s license should be granted, and whether Respondent relied upon an unadopted rule in formulating its intended decision to deny Petitioner’s application, in violation of section 120.57(1)(e), Florida Statutes (2015).1/
Findings Of Fact Respondent, Construction Industry Licensing Board (Respondent or Board), is charged with administering chapter 489, Part I, Florida Statutes, relating to construction contracting, and issuing licenses to certified building contractors. Petitioner, Tony L. Phillips, applied to the Board for a certified building contractor’s license, pursuant to section 489.111, on March 3, 2015. Petitioner passed the required written examination and his application was scheduled for hearing before the Board on May 14, 2015. Building contractors are licensed to construct commercial buildings, and single-dwelling or multiple-dwelling residential buildings, not exceeding three stories in height. See § 489.105(3)(b), Fla. Stat. Section 489.111(2)(c)2. provides eligibility for licensure as a construction contractor. An applicant is eligible for licensure by examination if he or she has a total of at least four years of active experience as a worker who has learned the trade by serving an apprenticeship as a skilled worker who is able to command the rate of a mechanic in the particular trade or as a foreman who is in charge of a group of workers and usually is responsible to a superintendent or a contractor or his or her equivalent, provided, however, that at least 1 year of active experience shall be as a foreman. (emphasis added). Florida Administrative Code Rule 61G4-15.001(2)(a), provides the qualifications for certified building contractors, in pertinent part, as follows: In the case of applicants for certification in the general or building contractor categories, the phrases ‘active experience’ and ‘proven experience’ as used in Section 489.111(2)(c)1., 2., or 3., F.S., shall be defined to mean construction experience in four or more of the following areas: Foundation/Slabs in excess of twenty thousand (20,000) square feet. Masonry walls. Steel erection. Elevated slabs. Precast concrete structures. Column erection. Formwork for structural reinforced concrete. (emphasis added). In his application, Petitioner listed his experience as a foreman with Jacobs Engineering Group, Inc. (Jacobs), to meet the statutory and rule requirements for active experience in the trade. At all times relevant hereto, Jacobs was a construction engineering inspection consultant for the Florida Department of Transportation (FDOT). Jacobs performed the inspection of various design-build roadway projects undertaken by construction contractors on behalf of FDOT. Petitioner’s application included three specific projects to demonstrate Petitioner’s relevant experience: Wekiva Parkway, John Young Parkway Extension, and Baseline Road. The Wekiva Parkway project consisted of a four-lane highway, three category one bridges, a toll gantry, and equipment enclosure. The general contractor charged with construction of this project was the De Moya Group. Jacobs performed the construction engineering inspection role for FDOT. Jacobs’ role was quality control and inspection. Petitioner indicated in his application that he was the foreman “charged with overseeing the construction of the work on the bridges, roads and related structures.” Jacobs employed Petitioner as a foreman of Jacobs’ employees, who conducted inspections of construction work performed by the De Moya Group. Petitioner’s duties on the Wekiva project were to perform inspections. Petitioner did not perform construction duties, but rather inspected the construction performed to ensure compliance with the applicable FDOT and contractual requirements. While Petitioner’s inspection duties were vital to ensure the soundness of the facilities under construction, he did not perform construction work. The John Young Parkway project consisted of a flyover over State Road 441, including a large steel girder with integral pier box flyover bridge, sound walls, signalization, sidewalks, asphalt, and reinforced earth walls. The general contractor charged with construction of this project was Southland Construction. Jacobs performed the construction engineering inspection role for FDOT. Petitioner was project foreman for Jacobs on the John Young Parkway project. As such, Petitioner was responsible to ensure that the work was performed in accordance with the contract documents. Petitioner did not perform any construction work or supervise the construction workers employed by Southland Construction. As senior roadway inspector on John Young Parkway, Petitioner had the authority to question the work of the construction crew, and redirect work if it was not being performed per the contract documents or FDOT specifications. If necessary, Petitioner, through the chain of command at Jacobs, could stop work on the project in order to conform work to specifications. However, Petitioner did not perform any construction work on the project. The Baseline Road project consisted of small bridges, small animal crossings, noise walls, drainage structures and gravity walls, signalization, curb gutters, and sidewalks. The general contractor charged with construction of this project was C.W. Roberts Contracting. Jacobs performed the construction engineering inspection role for FDOT. On the Baseline Road project, Petitioner supervised the inspection of all animal crossing structures, as well as the relocation and installation of utilities, and the movement of traffic through the construction site. Petitioner admitted that all of the technical qualifications listed in his application were earned as a Jacobs’ employee performing the task of construction engineering inspection on these three projects. All of the experience Petitioner listed in his application was in the execution of projects performed on behalf of FDOT. None of the job descriptions which Petitioner listed in his work experience as road inspector, bridge inspector, utility coordination facilitator, environmental monitoring personnel, and administrator of maintenance of traffic contracts is considered “construction” by the Board. In fact, contracting work on roads, bridges, streets, and highways is exempt from regulation as construction contracting. See § 489.103(1), Fla. Stat. Thus, even the work performed by the FDOT contractors on those three projects was not “construction” subject to regulation by the Board. The single building or enclosed structure of any kind that Petitioner had any involvement with over the four years of work experience offered in his application was a one-story concrete enclosure to house toll-reading equipment. Petitioner did not supply any further information on this structure. It is clear from the record that Petitioner did not perform any of the construction work himself nor was he a foreman on any of the construction crews. All of the work that he performed concerned the inspection of work performed by construction contractors. Petitioner admitted that he has never built, or supervised the construction of, a single, two, or three-story, habitable, commercial, or residential building. Unadopted Rules Petitioner alleges that Respondent relied upon non- rule policy in formulating its decision to deny Petitioner’s application, in violation of section 120.57(1)(e). Section 120.57(1)(e)1. prohibits agencies from basing agency action that determines the substantial interests of a party on an unadopted rule. The denial of Petitioner’s application for a building contractor’s license affects Petitioner’s substantial interests. A “rule” is “an agency statement of general applicability that implements, interprets, or prescribes law or policy.” § 120.52(16), Fla. Stat. Agencies are required to adopt each agency statement defined as a rule by rulemaking procedures set forth in section 120.54. See § 120.54(1)(a), Fla. Stat. Petitioner alleges Respondent maintains three statements which constitute rules, pursuant to section 120.52(16), but which have not been adopted as rules, pursuant to section 120.54, and relied on those statements in formulating its decision to deny Petitioner’s application, in violation of section 120.57(1)(e). First, Petitioner maintains the Board denied his application because, on the jobs he submitted to demonstrate his relative experience, he could not “hire or fire” contractors and did not control the “means and methods” of construction. Because these terms are not used in the controlling statute or rule, Petitioner argues that the Board relied upon statements of general applicability which have not been adopted as rules.2/ During the hearing on Petitioner’s application, two of the seven Board members, Mr. Boyette and Mr. Cathey, questioned Petitioner about whether he had control over the “means and methods” of construction on the projects he listed in his application. Both Board members concluded that, on the projects Petitioner listed as experience relevant to the building contractor’s license, he did not control the “means and methods” of construction. “Means and methods” of construction is a term of art in the construction industry referring to the plans for executing the work on a particular project. The term encompasses scheduling different aspects of a project and directing the work of a construction crew and, sometimes, subcontractors. A construction foreman has the ability to direct a construction crew and subcontractors. Thus, having control of the “means and methods” of construction is integral to the job of a construction foreman. At the hearing on Petitioner’s application, one of the members, Mr. Boyette, questioned whether Petitioner had authority to hire and fire C.W. Roberts, the prime contractor on the Baseline Road project. A construction foreman may have the authority to hire and fire members of a construction crew, depending on the size of the job. The record reflects that Petitioner’s application was denied because he did not meet the requirements for “active experience” in construction, as defined in the rule, not because he was not empowered to hire and fire members of the construction crew. Second, Petitioner contends that the Board refused to accept an affidavit certifying his construction experience, which is contrary to the rule requirements, thus applied an unadopted rule in reaching its decision to deny his application. Rule 61G4-15.001(1)(a) provides that “[a]ctive experience in the category in which the applicant seeks to qualify shall be verified by affidavits prepared or signed by . . . an architect or engineer . . . who is licensed in good standing . . . listing chronologically the active experience in the trade, including the name and address of employers and dates of employment (which may be corroborated by investigation by the Board). Petitioner did not submit an affidavit with his application. Respondent does not contend Petitioner’s application was denied for failure to include the affidavit with his application. At hearing, Petitioner introduced an affidavit from Anthony Caruso, Petitioner’s supervisor at Jacobs. In the affidavit, Mr. Caruso certified that Petitioner “has more than four years proven experience as a foreman” in the following areas of construction work: [f]oundation/slabs in excess of twenty thousand (20,000) square feet, [s]teel erection, [e]levated slabs, [p]recast concrete structures, [c]olumn erection, and [f]ormwork for structural reinforced concrete (six of the seven criteria listed in rule 61G4-15.001). At hearing, Respondent’s expert, Paul Del Vecchio, a certified general contractor and former 12-year member of the Board, testified that the Board does not rely on affidavits to verify an applicant’s active experience. Mr. Del Vecchio related that the Board had been advised it had no statutory authority to require an affidavit and had discontinued accepting affidavits pursuant to the rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order denying Petitioner’s application. DONE AND ENTERED this 10th day of March, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 10th day of March, 2016.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact In response to petitioner's first request for admissions, respondent conceded that he has been licensed at all pertinent times as a registered general contractor, and that he now holds license No. RG 0016059. New Veep At one time, Alachua County building officials allowed Donald Russell, who owns Gator Aluminum, Inc. and serves as its president, to secure building permits for aluminum carport roofs and similar jobs that Gator Aluminum, Inc. performed in the county. Mr. Russell holds an aluminum specialty contractor's license. After June 5, 1986, however, the Alachua County authorities no longer allowed Mr. Russell's license to qualify his company for this work. As a result of this change, Mr. Russell sought out respondent Bruce Kirby, whom he had known for some 15 years. Mr. Kirby had spent "20 years around the aluminum business," but he worked for the University of Florida as a refrigerator mechanic at the time. Mr. Kirby became vice-president of Gator Aluminum, Inc., while continuing his employment with the University. He agreed to work for the company by reviewing applications for building permits; alerting Mr. Russell or Bob Baxter, another Gator Aluminum, Inc. employee, to any problems he saw with the plans; applying or authorizing his wife to apply and secure a building permit; and by looking over the work after it was done, before calling for inspection by a building official. For these services he was paid $50 to $100 for each job. Remodeling On March 12, 1987, Arthur and Doris Jones signed a contract with Gator Aluminum, Inc. to pour a concrete slab, install a carport roof, hang awnings, cover the roof of the main house with aluminum, and do miscellaneous other work at the Jones' residence in Archer, which is in Alachua County. Petitioner's Exhibit No. 1. Work began a week later. No building permit was posted before the concrete was poured, and none was obtained until April 6, 1987, five days after Bruce Kirby's wife applied for the permit on his behalf. Petitioner's Exhibit No. 2. Pouring the concrete slab before posting a building permit did not violate the building code, which requires no permit for such work. Only after the permit was posted did aluminum work begin. On May 11, 1987, construction completed, the Jones paid the balance due under the contract. Dry Clothes Wet Mrs. Jones was folding clothes in the new carport on May 18, 1987, when it began raining. Her husband had hardly finished remarking on the fact that none of the rainwater collecting on the carport roof was flowing through the downspouts when the roof creaked, then buckled, spilling gallons of water and damaging vehicles, lawn chairs and clay pots. Mrs. Jones escaped unscathed, but part of the roof hit Mr. Jones a glancing blow on the shoulder. The rain on the 18th was the first that anybody recalled since the carport's completion a week earlier. Experts agreed that the weight of the rainwater brought the roof down; water weighs eight pounds a gallon. But the evidence did not show why such a quantity of water accumulated on the roof. Perhaps the roof was installed without the requisite pitch, although a preponderance of the credible evidence put the vertical drop at nearly a half inch for every horizontal foot, which should have been sufficient. Debris left by workmen may have clogged the drains. No trees stood nearby. In the collapse, the carport roof pulled away from the fascia board to which it had been attached. In keeping with industry standards, the workmen had used three-inch screws in the rafter tails and three one-inch screws per pan elsewhere along the fascia board. The fascia board itself was old and riddled with dry rot, which careful inspection might have revealed, but the significance of this is unclear. Apparently, the three-inch screws pulled out of the rafters, which were sound. When Mr. Russell heard what had happened, he came promptly, and offered to replace the roof. Mr. and Mrs. Jones turned him down, however, and instructed him and all other employees of Gator Aluminum, Inc. to stay off the premises. Eventually, Gator Aluminum's insurer paid to replace the roof and for the damages the collapse had occasioned. Inspection and Supervision In the spring of 1987, Mr. Kirby's father-in-law was dying of leukemia up the country, and his own mother, who also lived out of state, had a heart attack. Even when he was in town, moreover, he was not accustomed to look over the work Gator Aluminum, Inc., performed under the authority of permits he obtained until aluminum mechanics, many of whom he had known for several years and in all of whom he had confidence, had finished the project. At no time before the roof collapsed had respondent Bruce Kirby ever set foot on the Jones job site. He never talked to Mr. Russell or anybody else about the job while it was in progress. Whether this lack of supervision contributed to the untimely demise of the carport roof was not clear from the evidence. In Mr. Kirby's experience and in the industry generally, a delay of a week or even much longer between completion of a job and the contractor's call for final inspection is not uncommon. Many jobs, including the job Gator Aluminum, Inc. undertook for the Jones, require only a final inspection. Nobody told Mr. Kirby that work at the Jones' house had finished. After Mr. and Mrs. Jones barred Gator Aluminum, Inc.'s employees from the premises, Mr. Kirby was no longer in a position to inspect the work to determine whether the job met building code requirements. He never called for a final inspection by the building official, although Mr. Russell asked that the roof be inspected, in December of 1987.
Findings Of Fact Petitioner Luther E. Council, Jr., who is now 32 years old, is no stranger to the business of contracting. His father, Luther E. Council, Sr., began instructing him in the trade when Petitioner was approximately 10 years old. Mr. Council, Sr. operates Council Brothers, Incorporated, a commercial plumbing, heating and air conditioning contracting firm. From July 1969 until July 1973 Petitioner was employed as a plumber by Prescott Plumbing Company in Tallahassee, Florida. His duties included assembling and repairing pipes and fixtures for heating, wastewater, and drainage systems according to specifications and plumbing codes. In September 1973 Petitioner entered the United States Navy where he served as an aviation electrician. He attended numerous training schools including electrical, electronics, and avionics schools at the Naval Air Station in Memphis, Tennessee, and at the Naval Air Station at Cecil Field, Jacksonville, Florida. This instruction included over 1,500 hours of classroom time. After two years of service he was honorably discharged. Upon his discharge from the Navy in 1975, Petitioner went to work for Litton Industries at their Ingalls Shipyard in Pascagoula, Mississippi. He began in the position of Maintenance Electrician B but was promoted to Journeyman in less than six months. After approximately one and a half years at Ingalls Petitioner was hired at Brown & Root Construction Company as a Journeyman Electrician on their electrical termination crew. In that position he was responsible for the termination of all electrical equipment in the steam power plant for Mississippi Power Company. He remained in that position until the plant was shut down. Petitioner then returned to Ingalls where he was a Maintenance Electrician on the automated equipment crew. He maintained and repaired equipment such as boilers, welding machines, x-ray machines, air compressors, bridge cranes, communications equipment, sheet metal shop equipment, and fire and security alarm systems. This period of employment was from July 8, 1976 until February 2, 1977. Thereafter Petitioner was again employed by Brown & Root Construction Company, this time in Axis, Alabama. In his position as Work Leaderman Electrician (assistant foreman) he was responsible for the construction, installation, and termination of all electrical equipment for a particular utilities area at the Shell Chemical Plant. He worked on equipment such as boilers, air compressors, water treatment facilities, pump motors, hot oil furnaces instruments, monitoring and control panels, and incinerators with a crew of up to 18 men. Petitioner did not have a foreman but was directly responsible to the project superintendent. From June 1978 until June 1979 Petitioner was employed as an electrician by Union Carbide in Theodore, Alabama. As the only electrician on duty at night, Mr. Council was responsible for the electrical maintenance of all machinery ranging from the power plant distribution system to overhead bridge cranes to small electronic devices. Included within his responsibilities were maintaining air conditioning systems, interior and exterior lighting systems, and repairing huge sandblasting equipment. Upon completion of his work for Union Carbide he returned home to Council Brothers, Inc. Since his return to Council Brothers in June of 1979 Petitioner has had a variety of responsible duties. His functions can be placed in two categories: roving foreman and estimator. Council Brothers is a mechanical contractor with a gross profit of over 1.1 million dollars for the year 1983. Some of the firm's recent projects include installing heating, ventilation and air conditioning (HVAC) equipment at several local high schools; pressurizing the stairwells and elevator shafts in the State Capitol building, modification of HVAC systems at several state office buildings in Tallahassee, Florida, and renovation work at the State Hospital in Chattahoochee, Florida. As an estimator Petitioner supervises the project design and is responsible for the firm's mechanical contracting projects. On most of its projects Council Brothers is the general contractor for the mechanical work. It then subcontracts out the specific electrical work required. In his capacity as a roving foreman Respondent serves as a trouble shooter available to assist those projects which may encounter particular problems. He is then responsible for solving the problems through a redesign of the project, the use of alternative equipment, or some other means. Since August of 1981 however, Mr. Council has spent most of his time in the office estimating and bidding jobs. On August 4, 1983 Petitioner became Vice-President of Council Brothers, Inc. The firm first registered as an electrical contractor in June 1983. Petitioner holds licenses as a certified building contractor, plumbing contractor, mechanical contractor and underground utilities contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Electrical Contractors Licensing Board enter a Final Order denying Petitioner permission to take the examination for licensure as a certified electrical contractor. DONE and RECOMMENDED this 14th February, 1984, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1984.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: Respondent is, and has been at all times material hereto, a registered professional engineer in the State of Florida, having been issued License No. PE 0022656 by the State of Florida Board of Professional Engineers. In late 1983, the Respondent designed and prepared plans for the alterations of a private residence in Ft. Lauderdale, Florida, owned by Heinz Welschoff (the Welschoff project). The alterations were to consist of converting a garage into a bedroom and bathroom. In connection with the Welschoff project, two sets of professional drawings were submitted to the City of Ft. Lauderdale Building Department. In each set of drawings, the Respondent affixed his seal and signature to the electrical, mechanical and structural plans. The first set of drawings submitted to the Ft. Lauderdale Building Department were dated January 1, 1984 and bore the seal and signature of the Respondent. The structural information contained in the January 1, 1984 drawings was incomplete in that there was no depicted roof framing plan and the framing details included were inadequate to indicate what was required for sufficient design. A revised set of plans for the Welschoff project was dated March 5, 1984 and bore the seal and signature of the Respondent. The structural information contained in the revised set of plans for the Welschoff project was also inadequate for failure to depict a roof framing plan. The revised Welschoff project plans failed to indicate how trusses were to be supported, which beams were necessary over the garage doors and glass sliding doors, lacked necessary construction detail, and were inadequate for permitting purposes. In projects such as the Welschoff residence addition, it is the engineer's responsibility to design and specify the criteria for the roof system. Both sets of the Welschoff project electrical plans contained several deficiencies and omissions. In the electrical plans: outlets were not identified with a circuit number; the panel board schedule was not scaled; electrical calculations were not in accordance with the National Electrical Code; the electrical riser did not show correct over-current devices for the feeders; and wire sizes for the different branch circuits were not specified (all in violation of the South Florida Building Code which incorporates the National Electrical Code). The Respondent failed to utilize due care in preparing the Welschoff project's electrical plans and the drawings did not meet the standard of care used in the professional engineering industry in South Florida. The Welschoff plans were reviewed by the City of Ft. Lauderdale Building Department and were rejected by the zoning, structural, electrical, project control and air conditioning examiners. In early 1984, the Respondent prepared plans for the renovation and alteration of the Medallion Villas Retirement Home (Medallion Villas project). In connection with the Medallion Villas project, the Respondent prepared a set of plans dated March 2, 1984, and revised October 16, 1984, which were submitted to the Ft. Lauderdale Building Department. In each set of plans the Respondent affixed his seal and signature to the electrical, mechanical and structural drawings. The structural drawings for the Medallion Villas project plans were lacking in details and therefore confusing, failed to convey the intention of the designer, and contained all design aspects on one sheet. The electrical plans for the Medallion Villas project contained numerous deficiencies and omissions. The electrical plans: failed to show outlets with appropriate circuit designations; failed to show a panel board schedule as to what the panel consists of; failed to indicate how either the air conditioning units or kitchen equipment were to be connected; failed to indicate branch circuit wire and conduit sizes to be used (a violation of National Electrical Code Requirements); and, the electrical riser diagram failed to show all of the connections and failed to show field wires. The mechanical plans for the Medallion Villas project contained several deficiencies and omissions. The plans depict a gas-fired water heater without a flue (vent) in violation of the South Florida Building Code, Broward Edition (hereinafter SFBC); fail to depict how the wood trusses will be protected as the gas-fired water heater flue passes through them, in violation of the SFBC; depicts an air conditioning system which utilizes an air conditioning unit normally used in mobile homes without showing duct work or supply plenums which would be necessary to adapt the unit to building construction; and, fail to indicate design details for a source of 180 degrees F sanitizing water to be used for the kitchen dishwasher in the rinse cycle (required by Florida Health Code). The Respondent had expected that the Medallion Villas project would not meet zoning requirements and would be rejected by the building department for that reason. The Respondent did not want to spend a lot of time and effort on electrical and mechanical details on the Medallion Villas project because he believed that the project would be rejected in any event. The Respondent did not make any notations on the plans indicating that they were for a limited purpose. It is common practice and generally accepted in the professional engineering and construction industry that plans containing a professional engineer's seal and signature are considered complete and correct for all purposes. Particularly, in an application for a building permit, plans signed and sealed by a professional engineer are assumed to be ready for construction. Consistent with industry-wide practice and expectations, the Ft. Lauderdale Building Department assumes that a set of professionally sealed plans received in connection with a building permit application are complete and ready for construction with possibly a need for minor corrections only. When a building permit application is received by the City of Ft. Lauderdale Building Department, a review is completed by zoning, structural, electrical, project control and air conditioning examiners. Building permit applications and plans in connection therewith are never reviewed for a limited purpose and are expected to meet minimum building code requirements in all spheres of review. The SFBC is the applicable building code in the Ft. Lauderdale area. The Respondent failed to utilize due care in preparing the Medallion Villas project's structural, mechanical and electrical plans and did not meet the standard of care used in the professional engineering industry in South Florida. During early 1985, the Respondent was retained by Holland Builders, Inc. to design the interior of an aviation school to be located at Executive Airport in Ft. Lauderdale (the aviation school project). The Respondent was hired to work out the interior details such as electrical, mechanical and air conditioning. The structure itself was to be prefabricated. The Respondent affixed his seal and signature to a set of electrical, mechanical and structural plans for the aviation school dated February 18, 1985. The plans were submitted to the Ft. Lauderdale Building Department for permitting purposes. The electrical plans for the aviation school project contained numerous errors, omissions and deficiencies. The aviation school electrical plans: failed to identify outlets with branch circuit numbers; reflected calculations which were not in accordance with the National Electrical Code; failed to indicate termination methods for aluminum conductors as regards active current; and, failed to specify branch circuit wire and conduit sizes to be used. The mechanical plans for the aviation school project contained numerous omissions and deficiencies. The mechanical plans for the aviation school: failed to specify the material to be utilized in the flue for the hot water heater (required by SFBC); failed to depict specifications for a grease interceptor in the kitchen; and, failed to indicate a method of sanitizing cooking utensils in the kitchen (either a dishwasher or three compartment sink is required by the Florida Health Code). The aviation school project's mechanical and electrical plans were actually drawn up by the contractors that constructed the prefabricated building. The plans drawn up by the contractors were later given to Respondent. The Respondent reviewed and approved the plans, placing his signature and seal on them. The Respondent failed to utilize due care in the preparation and approval of the aviation school project's mechanical and electrical plans. The aviation school project's mechanical and electrical plans did not meet the standard of care typically used in the professional engineering industry in South Florida. The Respondent has a bachelor of science degree in civil engineering from Chicago Technical School College, Chicago, Illinois. The Respondent also attended Coyne Electrical School, a vocational school in Chicago, where he received training in electrical work and refrigeration. The Respondent served 3 years in the Coast Guard as an Electronics Technician. The Respondent worked primarily with electronic equipment, but worked for a while with electrical systems on a small ship. The Respondent has 28 years experience as an engineer. The Respondent was first employed with Superior Concrete Accessories in Chicago, Illinois for 8 years as a junior engineer. While there, the Respondent's duties included laying out bridge decks and forming concrete walls. The Respondent was next employed with Riverside Corporation in Pompano Beach, Florida for 9 years as engineer. While with Riverside, the Respondent worked on shoring for concrete work decks and the erection of derricks. Following that, the Respondent was employed with Concreform Company in Miami, Florida for 4 years as an engineer. The Respondent basically worked on shoring while with Concreform. The Respondent has been self-employed as an engineer in Fort Lauderdale for the past seven years. The Respondent's most significant prior working experience has been in the areas of structural and civil engineering design. The Respondent is not licensed in electrical nor mechanical engineering.
Recommendation Based upon the foregoing, it is recommended that a Final Order be entered: Placing Respondent's license on probation for a period of two years during which Respondent will be required to complete a course in professionalism and ethics and will be required to appear annually before the Board of Professional Engineers; Limiting Respondent to the practice of civil engineering unless Respondent passes a licensure examination in the areas of structural, electrical, or mechanical engineering; and, Assessing an administrative fine of $1,500. DONE and ORDERED this 10th day of December, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2021 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Covered in Procedural Background section. Adopted in Findings of Fact 3 and 4. Adopted in Finding of Fact 5. Rejected as subordinate. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Rejected as subordinate. Adopted in Finding of Fact 4. Adopted in Finding of Fact 9. Rejected as subordinate. Adopted in substance in Findings of Fact 27 and 28. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 25. Rejected as subordinate. Rejected as subordinate and unnecessary because beyond the allegations of the Administrative Complaint. Adopted in substance in Finding of Fact 28. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Covered in Procedural Background section. Rejected as subordinate and unnecessary. Rejected as subordinate and unnecessary. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 15. Adopted in Finding of Fact 17. Adopted in Finding of Fact 17. Adopted in substance in Finding of Fact 17. Adopted in substance in Finding of Fact 17. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 18. Rejected as a recitation of testimony. Rejected as misleading and not supported by the evidence. Mr. Hufsdy testified that he was unsure whether the 6" duct in the kitchen diagram was suppose to connect to a duct or whether it was suppose to ventilate the range. Mr. Hufsdy testified that he was unable to determine the designers' intent for the 6" duct. Adopted in substance in Finding of Fact 27. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Covered in Procedural Background section. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 26. Adopted in substance in Findings of Fact 26 and 29. Rejected as misleading and a recitation of testimony. Garcia indicated that he was not certain whether parking lot lighting was within the scope of the Respondent's responsibility in connection with the project. Further, the Respondent admitted that he failed to provide parking lot lighting, but indicated that street lighting would be sufficient. Because the Respondent failed to indicate street lights on the aviation school plans and the Petitioner did not present independent evidence showing the degree of illumination of the existing street lights, the sufficiency of the lighting could not be determined. Rejected as a recitation of testimony. (See note 48 above.) Partially adopted in Finding of Fact 29. Matters not contained therein are rejected as a recitation of testimony. Rejected as a misleading recitation of testimony. Rejected as a recitation of testimony and beyond the allegations contained in the Administrative Complaint. Rejected as subordinate and a recitation of testimony. Adopted in substance in Finding of Fact 28. Covered in Procedural Background section. Adopted in Finding of Fact 12. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 3. Adopted in Finding of Fact 21. Adopted in substance in Finding of Fact 20. Rejected as subordinate and a recitation of testimony. Adopted in substance in Finding of Fact 18. Adopted in Finding of Fact 31. Adopted in Finding of Fact 33. Adopted in substance in Finding of Fact 32. Rejected as subordinate. Adopted in substance in Finding of Fact 18. Adopted in Finding of Fact 35. Adopted in Finding of Fact 34. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as subordinate. Partially adopted in Finding of Fact 18. Matters not contained therein are rejected as not supported by the weight of the evidence. Rejected as subordinate. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph Potts 3455 Northeast Twelfth Terrace Ft. Lauderdale, Florida 33334 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Jr. Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The parties stipulated that the Petitioner's financial responsibility and morals were not an issue. The only basis for the Board's denial was the Petitioner's alleged lack of experience. Petitioner and Respondent submitted proposed findings of fact which were read and considered. These proposals are discussed in detail in the Conclusions of Law.
Findings Of Fact Petitioner is presently employed as an electrical inspector for Hillsborough County, Florida. He has held this position for approximately two and one-half (2 1/2) years. He holds a master's electrician's license issued by Hillsborough County but is prohibited by terms of his employment as an electrical inspector from engaging in any electrical contracting activity. Petitioner is technically experienced as an electrician. Prior to his employment as an electrical inspector, Petitioner was employed by Mobil Chemical Company which operates several phosphate mines in central Florida. The Petitioner was employed at its Fort Meade mine. The Fort Meade mine, or plant, is a substantial operation producing approximately four (4) million tons of phosphate per year at the time when Petitioner was employed. The mining area occupies several hundred acres and the working or processing area occupies approximately ten (10) of those acres. The working area comprises of a flotation plant, a washer plant, a sizing section, a shipping area where the rock is loaded on railroad cars, a maintenance area, and an office complex. The plant ran three (3) shifts around the clock and employed approximately one hundred (100) persons. All of the major equipment to include the 30 and 40 yard draglines at the Fort Meade plant alone contained in excess of one hundred (100) electric motors each with its own fuse box and disconnect. The Petitioner was employed by Nobil Chemical Company for twenty (20) years (1962-1982); 16 years as an electrician and four years as supervisor of the electrical maintenance at the Fort Meade plant. He was responsible for all electrical repairs, maintenance, and new construction at the plant for all three shifts. His direct superior was the department chief who was in charge of all the electrical departments at all of Mobil's phosphate mining locations. Approximately twenty (20 percent) percent of the Petitioner's time was spent on new construction projects. Approximately forty (40 percent) percent of petitioner's time was spent on regular maintenance and repairs. Fifteen (15 percent) percent of the Petitioner's time was spent on emergency repairs. The remainder of petitioner's time was spent on miscellaneous projects. Petitioner supervised a staff of ten (10) men: two (2) crewmen, four linemen, and four (4) electricians. The Petitioner was responsible for estimating the cost of jobs for his immediate superior to include the cost of materials and the number of man hours. The Petitioner was responsible for counting and reporting the number of hours his employees worked in turning this information into the company's payroll section. Petitioner had the power to request overtime work for his employees and made recommendations concerning hiring and firing personnel. On new construction the Petitioner's responsibilities began with doing takeoffs from blueprints provided for the job and supervising the work through to its completion. He was responsible for the maintenance and repair of the Fort Meade facility to include small electrical motors, large electrical motors, office lighting, transformers, and the large draglines. Petitioner's experience included experience with three (3) phase electrical power, high voltage electrical service, and lower voltages used in small motors, lights and appliances. The electrical department which the Petitioner headed provided service only to Mobil's Fort Meade plant. Mobil is not an electrical contractor; however, its electrical department provided extensive services which are comparable to those an outside electrical contracting service would have provided. Although the petitioner did not prepare a payroll for those persons who he supervised, he did serve as the clerk for his church for five (5) years during which time he was responsible for preparing the payroll for the church's employees. The petitioner applied in 1982 to sit for the electrical contractor's licensing examination. His application was approved by the Respondent and the Petitioner sat for the examination on two occasions, failing both examinations. Petitioner reapplied to sit for the electrical contractor's licensing examination in 1984 and was denied by the Respondent based upon lack of satisfactory experience. The Petitioner held a responsible management position with Mobil at the Fort Meade plant as supervisor of electrical maintenance at the Fort Meade facility for four (4) years. The Petitioner never negotiated a construction contract, was never bonded as a contractor, never obtained insurance to cover his operation as a contractor, and never sought a building permit for any of the electrical work done at the Fort Meade facility.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Electrical Contractors Licensing Board disapprove the application of Cecil U. Lane to sit for the statewide electrical contractor's license. DONE and ORDERED this 18th day of January, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1985. COPIES FURNISHED: Mr. Jerry W. Hendry Executive Director Department of Professional Regulation Division of Electrical Contractors 130 North Monroe Street Tallahassee, Florida 32301 Eric S. Ruff, Esquire Post Office Box TT Plant City, Florida 33566 Arthur C. Wallberg, Esquire Department of Legal Affairs Suite 1601 The Capitol Tallahassee, Florida 32301 Mr. Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Petitioner is General Manager and President of Modern Air Conditioning, Inc., (hereafter "Modern Air" or "Corporation"), and R. L. Anderson, Inc., Mechanical Contractors. He has held these positions with Modern Air since April 1965. The Petitioner has held journeyman's cards in air conditioning, as well as union structural iron worker's, competency and electrical journeyman szzz cards. The Petitioner has been a member of several municipal and county licensing boards and is presently serving a third term on the Florida Construction Industry Licensing Board. Modern Air is or has been licensed as an electrical contractor in Lee, Charlotte, Glades, Collier, Hendry, and Sarasota counties and the cities of Sanibel, Naples, and Punta Gorda. Modern Air employs six full-time and three part-time journeymen electricians. Among the representative electrical contracting jobs which the Corporation has performed over the past three years are wiring schools, homes, condominiums, and small commercial businesses. In addition to air conditioning and rewiring, the Corporation employs individuals to perform plumbing and insulating work. Modern Air is a solvent corporation with assets in excess of one and a half million dollars. Its net income for 1978 was $118,967.00. Corporate retained earnings for March 31, 1977 through 1978 were $463,936.00. The Corporation is bonded with the American Insurance Company for one million dollars per single occurrence with a three million dollar maximum limit. Modern Air and Petitioner have high credit ratings and enjoy excellent reputations in the community. On December 18, 1978, Petitioner submitted an application to the Florida Electrical Contractor's Licensing Board to sit for the state electrical contractors examination in his capacity as qualifying agent for Modern Air. By letter dated March 15, 1979, the Board, upon the advice of its application committee and through its executive director, denied Petitioner's application. The denial was due to Petitioner's failure to demonstrate "unlimited" experience in the field of electrical contracting. At the hearing Petitioner explained the experience portion of his application and particularly the method which he used to demonstrate the value of each particular job listed. For example, as to one job, Collier County Public Schools, the value listed on the application was $33,000 yet the actual value of the total job to Modern Air was in excess of a quarter of a million dollars. The $33,000 was solely electrical with the rest being subcontracted while Modern Air remained prime contractor. The job information furnished which included auditoriums, cafeterias, gymnasiums, industrial arts labs, and homes was noted on the application as being indicative or representative of the corporate activity over the preceding three years. During the hearing, the Board's expert witness stated that if he had served on the application committee he would have returned the application and requested additional information in order to determine qualifications rather than simply deny the application.
