The Issue The Florida Construction Industry Licensing Board, Petitioner herein, seeks to revoke the general contractor's license of Roy G. Runken, Respondent herein, based on allegations set forth in specific detail hereinafter, that he (Respondent) engaged in acts and/or conduct violative of the Code of Metropolitan Dade County, Chapter 10, Sections 10-22(a)(g), which amount to specific violations of Chapter 468.112(2)(a) and (e). Based on the entire record compiled herein including the demeanor of the witnesses while testifying, I make the following:
Findings Of Fact Roy G. Runken (Respondent) holds certified general contractor's license no. CGC002558 which is presently current and inactive. On September 21, 1973, Respondent, d/b/a Triple "R" Construction entered into a contract with Mrs. Lydia E. Walker to build a funeral home at 11000 SW 216th Street, Goulds, Florida. Mrs. Walker applied for and secured a construction mortgage loan from the First National Bank of Homestead, Florida, in the amount of $105,000. She additionally deposited $7,000 of her funds into the construction draw account of which approximately $103,701.55 was withdrawn either by Respondent or by the bank to satisfy bills which were paid directly to suppliers by the bank. When construction was completed, the entire funds available in the construction draw account were exhausted plus an additional $600. which was paid by the owner (Mrs. Walker). (Testimony of Shirley Pluto, Vice President and senior loan officer of First National Bank of Homestead) Mrs. Walker testified and indicated that she met Respondent through one of his former employees who had served as a building code inspector. She testified that she entered the construction agreement with Respondent because she was desirous of obtaining quality construction work and Respondent enjoyed a good reputation in the community as a quality builder. The proposal submitted to the bank by Respondent and Mrs. Walker contained an agreed upon contract price of $114,500. A later executed agreement contained an amount of $72,980. (See Petitioner's Exhibits 4 and 5). Sometime during May, 1974, Respondent advised Mrs. Walker that his National Guard company was being reactivated and that he was leaving the area. Fred Runken, Respondent's son, took over the project and Respondent advised Mrs. Walker that his son (Fred) was as qualified as he. (Testimony of Mrs. Walker). She learned approximately one year later that Respondent's son was not "qualified". During the course of the construction, Mrs. Walker voiced numerous complaints concerning the quality and progress of the construction. (See Petitioner's Composite Exhibit 7). As an aside, it was noted that Mrs. Walker received a judgement from Respondent in the amount of $25,000 plus costs. (See Petitioner's Exhibit 8). During April, 1974, Respondent was issued a permit to construct the funeral home for Mrs. Walker. On May 6, 1974, the foundation was poured without incident. During July, 1974, the Dade County Area encountered a steel strike which created a problem for Respondent in obtaining "bar joists". During the construction of the funeral home, Respondent's son served as job foreman under the supervision of two licensed certified general contractors (Messrs. Benton and Habday [phonetic]). The evidence reveals that the plan as submitted by Mrs. Walker had to be modified in several aspects including joist beams, store front plans, all of which had to be revised by an architect. Respondent expressed difficulties with Mrs. Walker respecting allowances and selections and that when selections were made by Mrs. Walker, she failed to diligently pursue which in some instances resulted in price increases. He further testified to changes in brick work, cabinetry and the air conditioning systems. Additionally, the evidence reveals that all liens and/or notice of intent to file liens were satisfied. As best a can be determined by the record herein, it appears that Mrs. Walker only paid an additional $600 over and above the agreed upon price which in terms of the changes submitted to Respondent, would appear to be minimal. Moreover, it is uncontroverted that the contractor was forced from the building before construction was completed and that all draws were made per agreement with Mrs. Walker and the bank. Finally, there was no testimony or evidence of any municipal code violations. 1/ Based on the foregoing, I shall conclude and recommend that insufficient evidence was offered to establish that the Respondent engaged in any acts and/or conduct violative of Chapter 10 of the Code of Metropolitan Dade County or Chapter 468, Florida Statutes, as alleged.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 10th day of February, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue for resolution in this proceeding is whether Petitioner is entitled to additional credit for his response to question 124 in the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 30, 1998, by the National Council of Examinees for Engineers and Surveyors (NCEES).
Findings Of Fact Petitioner is a candidate for licensure as a professional engineer. On October 30, 1998, Petitioner sat for the Principles and Practice of Engineering portion of the examination in civil engineering. This is a national examination developed, controlled, and administered by the NCEES. Respondent is a Florida non-profit corporation created by Section 471.038, Florida Statutes, to provide administrative and other services to the Florida Board of Professional Engineers (Board). Petitioner was notified in January 1999, that his raw- score on the examination was 45, which converted to a full score of 67, was below the required passing score of 70. He contested the score and asked for a rescore of his responses to examination questions 123 and 124. NCEES reviewed the responses and awarded two additional points for question 123; it awarded no additional points for question 124. The rescore resulted in a raw-score of 47 and a full score of 69, still short of a passing grade. Petitioner then requested a formal administrative hearing and, as stated above, confined his challenge to his score on question 124. Question 124 involved computations for a detour roadway during a bridge replacement project. The question had four parts, thus requiring four computations (a-d). Segments of the detour were expressed in metric lengths (meters) in the question. A beginning station was described as 5 + 000.000. The question required that all computations be carried out to the appropriate significant digits. As described by the scoring plan for question 124, a perfect score was 10 points for an "exceptionally competent" response. The next highest score was 8 points for "more than minimum but less than exceptional competence," described as: Failure to provide answers to the required accuracy and a correct solution to requirements (a)-(d) OR an incorrect solution to one of the requests (a)-(d) with all answers within the required accuracy. Failure to provide the answers to the required accuracy will result in a deduction of two points at any level of scoring. (Respondent's Exhibit no. 8) The NCEES scorers awarded Petitioner a "6" for question 124, both initially and upon his requested review. Six points indicated "minimum competence," described as: Demonstrated a competent knowledge of reverse curves with a correct solution to at least two of the requirements meeting the required accuracy or a correct solution to at least three of the four possible requirements but answer(s) fail to meet the required accuracy. (Respondent's Exhibit no. 8) A solution is the methodology or process employed to reach a numerical result or answer in the examination problem, according to the competent credible testimony of Petitioner's experts. Those experts would have scored Petitioner's responses to question 124 as an "8" or "9". On rescoring, the NCEES score's comments in assigning a score of "6" were: SCORER'S COMMENTS: Requirement (a)-Failed to meet accuracy requirements of +/-0.015m. Requirement(b)-Decimal error was made. The station was in km and the curve length was in meters. Requirement(c)-Same error as in Requirement (b). No points were deducted for this error. Requirement (d)-Solution is correct. Minimum competence was shown by this solution. The grading process for the portions of the examination of which question 124 was a part was subjective within the guidelines provided by NCEES. Different scorers could award different points for the same answer. Petitioner's experts and Respondent's expert, all competent, credible witnesses, differed as to the score they would award. Petitioner's response to (a) of question 124 was not accurate within +/- 0.015m. That error alone would have resulted in a 2-point penalty. However, he also mis-read the initial stationing provided in the problem statement, resulting in inaccurate answers for (b) and (c). A correct solution generally includes the appropriate use of available data. In this case Petitioner's error in reading the correct station position was a technical error only and was caused by a misleading expression of the position in the question itself. His solutions to (a)-(d) were otherwise correct. In Florida, the only engineers who use the metric system are consultants for the Florida Department of Transportation (FDOT) and even that agency is phasing out the use of metrics. The use of metric measurements is not the standard of practice for Florida Professional Engineers. Out of the 30 projects that Respondent's expert has done since he was licensed, only one involved the use of the metric units. J. Keith Dantin, P.E., one of Petitioner's experts, has never in his 14 years of experience worked on a roadway or surveying problem in metric units. The Candidate Information Booklets provided by the Respondent to the examinees are conflicting and confusing. The February 1998 version states: "Examinees should be prepared to solve bridge problems using either metric or English units of measure. All other problems are in English units." (Petitioner's Exhibit No. 1). The October 1998 version states under the category Structural Design Standards: "All problems are in English units" (Respondent's Exhibit No. 3, boldface in original). When FDOT uses metric units it still expresses those units in English terminology. Thus, where question 124 positioned the beginning station at 5 + 000.000, the English translation would have been 50 + 00. It is evident that Petitioner read the station to be 5 + 00, missing one of the O's; if he had used the 5 + 000, or if the question had expressed the position at 50 + 00 (the English terminology used by the FDOT), all of Petitioner's answers would have been correct and his solutions would not have included the merely mechanical error of utilizing the wrong beginning station position. While he felt that he, personally, would understand the problem, Respondent's expert agreed there might be a bit of confusion. Respondent's expert was candid and credible but his professional experience was substantially less than Petitioner's experts, who also were candid and, on balance, more competent. Petitioner should have been scored an 8 on question 124. His solutions were basically correct and his answers were off merely due to the confusing expression of the beginning station. In real practice his error would have been caught before it reached the field and the error in no way betrayed a lack of fitness to practice as a professional engineer.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner's challenge to his score on question 124 be sustained and that his score be upgraded by 2 points, from a "6" to "8". DONE AND ENTERED this 3rd day of November, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 3rd day of November, 1999. COPIES FURNISHED: William H. Hollimon, Esquire Ausley & McMullen, P.A. 227 South Calhoun street Tallahassee, Florida 32302 Jeff G. Peters, Esquire Cedar Woods Office Center 1266 Paul Russell Road Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material to these proceedings, Respondent Farrall was licensed as a certified general contractor in Florida, and held license number CG C040234. In addition, the Respondent was licensed as a certified roofing contractor and held license number CC C024398. Mr. Farrall was the qualifying agent for Sunmaster Roofing Company. On May 25, 1987, Sunmaster Roofing Company entered into a contract with Clarence A. Miller and Emily Miller to reroof their residence in Naples, Florida. After the project was completed, Mr. and Mr. Miller filed a complaint with the Collier County Contractors' Licensing Board on December 7, 1987. Essentially, the complaint alleged as follows: 1) that the contractor abandoned the job without adequately completing construction; 2) that the roof materials were incorrectly installed; 3) that the contractor failed to obtain a building permit; and 4) that the contractor failed to adequately perform the contract due to his failure to correct faulty workmanship on the job. On December 11, 1987, copies of the complaint and a notice of hearing was sent to Respondent Farrall by certified mail to two different addresses. The items were promptly received at both locations. On January 15, 1988, the Respondent acknowledged that he was personally aware of the hearing scheduled for January 20, 1988. The Respondent requested a continuance until after January 29, 1988, because he had to attend to urgent family matters which required his presence in Canada. A continuance was not granted, and the hearing proceeded as scheduled. The Respondent was aware that the hearing was not continued prior to his departure for Canada. On January 20, 1988, a hearing was held, and the local board received evidence regarding the Miller complaint. As a result of the hearing, the local board found that the Respondent violated specific county ordinances in the following manner: by abandoning the job without legal excuse; disregarding or violating the building code by failing to obtain a building permit; and by failing to make good, faulty workmanship obviously performed in evasion of performance of the contract. The Respondent was disciplined by the Collier County Contractors' Licensing Board on January 20, 1988. His permit privileges were suspended in Collier County until the contractor makes restitution and appears before the Board for reinstatement. The Respondent was given fifteen days to appeal the decision. The Respondent personally received a copy of the disposition of the hearing by certified mail on January 28, 1988. An appeal was not taken of the decision.
Recommendation Based upon the foregoing, it is recommended that the charges set forth in the Administrative Complaint against the Respondent, John W. Farrall, in Case No. 89-3291 be DISMISSED. RECOMMENDED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 15th day of February, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3291 The proposed findings of fact set forth in Petitioner's proposed recommended order are addressed as follows: 1. Accepted. See HO #1. 2. Accepted. See HO #2. 3. Accepted. See HO #1 and #2 4. Accepted. See HO #8 and #9. 5. Accepted. See HO #8. Rejected. Irrelevant to the charges filed. Rejected. Irrelevant to the charges filed. The proposed findings of fact filed by the Respondent are addressed as follows: Accept the first two sentences. See HO #1. The rest of paragraph 1 is rejected as improper argument which is not based upon material evidence presented at hearing. Accepted. See HO #2. Rejected. The issue in this proceeding involves the discipline by the local government board and not the underlying facts upon which the board based its findings. Immaterial. 4. Rejected. Immaterial. See above. Rejected. Rejected. Rejected. Irrelevant. Irrelevant. Irrelevant. Rejected. Rejected. Irrelevant. Irrelevant. Rejected. Rejected. Rejected. Irrelevant. Irrelevant. Contrary to fact. See HO #6. Rejected. Rejected. Contrary to Irrelevant. fact. See HO #9. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 John W. Farrall 316-2 Tudor Drive Cape Coral, Florida 33904 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to attorneys? fees and costs as a prevailing small business party pursuant to section 57.111, Florida Statutes, and if so, in what amount.
Findings Of Fact On or about January 14, 2011, an application to construct a swimming pool and spa with screen enclosure was filed with the City of Deland by Bill Coody Custom Pools (Coody), a construction contractor. The application was reviewed by Mr. Joe Crum, a Deland building official involved with construction permit approval. Mr. Crum rejected the application because the design criteria and details for the design of the screen enclosure appeared to constitute a master design manual, but did not indicate that the documents had been peer-reviewed and did not indicate the required training for users of the manual. A master design manual is a generic engineering package prepared by a licensed engineer or architect, which provides engineering guidance for construction when used along with a contractor?s own site-specific design drawing. The documents submitted to Mr. Crum included generic load and span tables for various framing elements and generic construction details for screen enclosures, and appeared to leave selection of various elements to contractors depending on the site-specific design. The documents had been provided to Coody by Mr. Frank Cleaton, P.E. Mr. Crum contacted Mr. Cleaton on or about January 24, 2011, about the failure of the documents to meet the requirements for master-design-manual engineering. After Mr. Crum?s inquiry, Mr. Cleaton prepared a letter dated January 26, 2011, authorizing Coody to use “my sealed engineering set of design criteria and details for the design of aluminum structures.” The letter further provided in relevant part: In accordance with Florida Statute 489.113(9), this sealed engineering set is intended to be used as a reference in conjunction with the contractor?s own site- specific design drawing. The contractor?s drawing is not required to be sealed by me as the engineer of record as per FS 489.113(9). It is only required to be in compliance with what is set forth in my sealed design set. Design documents for the 135 Birchmont Drive screen enclosure were also signed and sealed by Mr. Cleaton on January 26, 2011, after the inquiry from Mr. Crum. These included only one site- specific document. All other drawings contained the same generic load and span tables, with some elements of those tables circled or otherwise identified for incorporation into the Birchmont structure. The site-specific drawings for the Birchmont screen enclosure were submitted with a permit application filed by Coody. According to the drawings of the Birchmont screen enclosure, the structure is less than 1,200 square feet in area and less than one story in height. The Florida Engineers Management Corporation (FEMC) provides administrative, investigative, and prosecutorial services to the Board of Professional Engineers. On or about February 9, 2011, FEMC received an e-mail from Mr. Crum alleging that Davis and Cleaton Engineering was providing a master design manual for aluminum structures that did not meet statutory requirements for the use of master design manuals. The following day, Ms. Wendy Anderson,1/ an investigator for FEMC, requested additional information from Mr. Crum. On or about February 11, 2011, at about 11:47 a.m., FEMC received an e-mail from Mr. Crum referencing "improper master file engineering." Attached to the e-mail was a copy of the permit application package for the screen enclosure located at 135 Birchmont Drive, Deland, Florida, that had been submitted to the Deland Building Department by Coody. The permit application package included documents signed and sealed by Frank Cleaton, P.E. The documents provided to FEMC by Mr. Crum did not identify any third-party peer reviewer or detail the training requirements for those using the manual. The determination that there was enough information to open an investigation was made by Ms. Anderson in consultation with the FEMC prosecutor, Mr. John Rimes. FEMC had reasonable cause to believe that Mr. Cleaton had violated section 489.113(9), Florida Statutes (2010), based upon the e-mails from Mr. Crum and the documents he provided. After receiving the copy of the "file with the improper master engineering," Ms. Anderson opened a Complaint File with FEMC, Case No. 2011007349. On March 22, 2011, Ms. Anderson provided notice of the investigation to Mr. Cleaton. The only formal pre-Probable Cause Panel notification given to Mr. Cleaton of any pending complaint regarding the design for the Birchmont project was the letter sent on March 22, 2011. The March 22, 2011, letter from Ms. Anderson advised Mr. Cleaton that he had the option to submit a written response to the complaint for consideration by legal staff and the Probable Cause Panel (PCP) of the Board. It also advised him that he could submit a written request for a copy of the investigative file that would be provided to him once the investigation was complete. Mr. Cleaton never requested that he be provided a copy of the investigative file. A letter dated March 31, 2011, from Mr. Cleaton to Ms. Anderson was received by FEMC on or about April 11, 2011. The letter stated that Mr. Cleaton had “clearly and specifically told the building department” that the package was not to be considered a master design manual. The response also stated that a “signed and sealed drawing” had been provided “as if it were” a site-specific project. The letter concluded by saying that no further “packages” would be issued until the matter was resolved, and that if necessary, Mr. Cleaton would “participate in a peer review.” The construction documents that had been given to Coody appeared to be a master design manual to the Deland building officials, FEMC staff, and later to members of the PCP. Mr. Joseph Berryman is a licensed professional engineer experienced in the design and analysis of commercial and industrial structures. Mr. Berryman has never supervised construction or conducted a final inspection of an aluminum patio shelter or screen enclosure. Mr. Berryman is an expert in structural engineering. He was well known to the members of the PCP as a consulting expert for the Board. He had rendered expert opinions to the Board in several recent license discipline proceedings involving aluminum screen enclosures. At Ms. Anderson?s request, Mr. Berryman reviewed the e-mail correspondence from Mr. Crum to FEMC, the correspondence from Mr. Crum to Coody, the January 26, 2011, authorization letter from Mr. Cleaton for Coody, the two-page permit application, and a one-page drawing showing the framing plan and elevations for the Birchmont screen enclosure. In a letter to Mr. Rimes dated April 15, 2011, Mr. Berryman concluded that the statements in the Coody authorization letter were consistent with the definition of master design manual system as addressed by section 489.113(9). He further concluded that if Mr. Cleaton wanted to continue to utilize a master design manual, he would need to obtain peer review and comply with the other requirements set forth in that statute. On or about May 31, 2011, Mr. Crum sent an e-mail to Ms. Anderson with an attached copy of an unsigned Uniform Complaint Form, which is utilized by the Board to document complaints. The e-mail stated that Mr. Crum thought he had sent the complaint form earlier, but then realized he had not done so. The e-mail asked if FEMC needed him to fax another copy of the Uniform Complaint Form with his signature on it. The complaint form outlined Mr. Crum?s earlier allegation that Mr. Cleaton was providing a master design manual for aluminum structures that did not meet the third-party peer review or training requirements of section 489.133(9), Florida Statutes. There was no evidence that FEMC ever contacted Mr. Crum in response to his inquiry about the need for another copy of the complaint form with his signature. Mr. Crum never provided a signed copy of his complaint to FEMC. There was no evidence of any prejudice to Mr. Cleaton resulting from the fact that the complaint was not signed. In light of Mr. Cleaton?s April 11, 2011, representation to FEMC that the documents were not being utilized as a master design manual, FEMC decided to “take him at his word” and consider the documents to have been prepared as signed and sealed engineering for a site-specific project. FEMC staff decided to investigate the engineering in the documents that had been provided to them, and asked Mr. Berryman to review them as part of the investigation. FEMC had no reasonable cause to believe that there was anything wrong with the engineering contained in the documents for the screen enclosure. Ms. Anderson did testify that, in her experience, a high percentage of construction plans for aluminum screen enclosures contained engineering flaws, but she was not familiar with either Mr. Cleaton or the Birchmont structure and did not have any information suggesting that these particular engineering documents were deficient. FEMC?s decision to investigate the engineering contained in the documents that had been given to them in connection with the complaint did not initiate a new investigation, but instead continued the investigation that had already begun, albeit taking that investigation in a new direction. Mr. Cleaton was not informed by FEMC of this change in the direction of the investigation. Mr. Berryman completed calculations for his review of the construction plans for the screen enclosure prior to June 20, 2011, but he did not provide a copy of those calculations with his report. In a letter addressed to Mr. Rimes dated June 20, 2011, Mr. Berryman identified various omissions of required information as well as flaws in the engineering designs and design assumptions contained in the construction documents, including the identification of several overstressed elements and violations of the Florida Building Code (FBC or the Code). Mr. Berryman concluded that, “As indicated above, Mr. Cleaton has failed to utilize due care in performing in an engineering capacity and has failed to have due regard for acceptable standards of engineering principles.” The June 20, 2011, report from Mr. Berryman was a competently prepared and adequately sourced engineering opinion. Any procedural errors or irregularities in the investigative stage did not impair Petitioner?s defense. Based substantially upon Mr. Berryman?s report, a proposed Administrative Complaint was prepared. Four counts alleged that the engineering documents for the Birchmont structure failed to include required information (counts 4A through 4D); three counts alleged that specific elements used in the Birchmont structure were overstressed at 2007 FBC prescribed design loading (counts 4E through 4G), alleging, for example, that the “2x5 SMB roof beam elements of the subject structure are significantly overstressed at 2007 FBC (Table 2002.4) prescribed design loading”; four counts alleged elements in column and beam schedules that were not utilized for the Birchmont structure were overstressed at 2007 FBC prescribed design loading (counts 4H, 4J, 4L, and 4M); two counts alleged that elements contained in column and beam schedules, only some of which were used in the Birchmont Structure, were overstressed at 2007 FBC prescribed design loading (counts 4I and 4K); and the two remaining counts (4N and 4O) contained generic allegations that the elements of the screen enclosure and the elements in the span tables were not engineered in accordance with the strength requirements of the 2007 FBC. On September 20, 2011, the PCP of the Board of Professional Engineers found probable cause to charge Mr. Cleaton with violating section 471.033(l)(g), Florida Statutes, by being negligent in the practice of engineering. The transcript of the probable cause proceeding shows that Mr. Rimes summarized the case for the members of the PCP and that they did not discuss the allegations prior to their vote finding probable cause. Mr. Rimes incorrectly stated that FEMC had received a complaint with regard to the quality of the work. Each member indicated that he had thoroughly read and reviewed the materials provided prior to the meeting. The transcript also shows some discussion of the facts of the case, but only after the vote. Mr. Rebane?s questions showed that he was aware that at different times during the investigation, issues regarding both master design omissions and deficient engineering in the signed and sealed engineering documents had been considered. Mr. Hahn?s comments showed he was aware that Petitioner had asserted that the drawings were signed and sealed documents for the Birchmont structure and even indicated that he believed Petitioner “made things worse for himself” by doing so. The members of the PCP were generally familiar with the extensive materials that were provided to them, the details of the case, and Mr. Berryman?s opinion. The PCP had previously been provided copies of the Issue Analysis and Staff Recommendation; the Investigative Report; the letter from Mr. Crum to Coody regarding the plans for the Birchmont screen enclosure; several e-mails between Ms. Anderson and others, including Mr. Crum, Mr. Rimes, and Mr. Cleaton; the authorization letter for Coody from Mr. Cleaton; the Application for Permit submitted for the Birchmont structure to the City of Deland; the engineering drawings for the structure; the letter dated March 31, 2011, from Mr. Cleaton to Ms. Anderson in response to the original complaint; the April 15, 2011, opinion letter from Mr. Berryman to Mr. Rimes, but without the second page; the unsigned Uniform Complaint Form submitted by Mr. Crum on or about May 31, 2011; the second opinion letter from Mr. Berryman to Mr. Rimes, dated June 20, 2011; and a draft of the proposed Administrative Complaint. The missing second page from the April 15, 2011, opinion letter continued a list of the documents that had been reviewed by Mr. Berryman, set forth the allegations made by Mr. Crum, and contained the following statement: “The problem at the building department was apparently resolved by the submittal of signed and sealed site-specific engineering for the project by Mr. Cleaton.” The missing page did not contain Mr. Berryman?s opinion and contained no information contradictory to the conclusions in the opinion letter. While Petitioner argues that the above-quoted sentence dispelled “any scintilla of justification” for the investigation, this conclusion is rejected. In fact, notwithstanding Mr. Cleaton?s statement to the building department that the documentation was not to be considered a master design manual, the opinion letter goes on to conclude that this statement of Mr. Cleaton?s was inconsistent with other statements he made and that the documents fail to include elements required by section 489.113(9). The absence of the missing page was not a material flaw in the probable cause proceedings. First, the two pages that were provided to the PCP accurately represented the entire opinion letter. Second, the April 15, 2011, opinion letter addressed Mr. Crum?s original allegations as to the failure to comply with the requirements of section 489.113(9), relating to master design manuals, which was not the ultimate basis for the Administrative Complaint. It was Mr. Berryman?s subsequent opinion letter dated June 20, 2011, also provided to the PCP, which provided the basis for the Administrative Complaint. Mr. Berryman?s calculations were not included among the materials given to the PCP. An Administrative Complaint reflecting the September 20, 2011, findings of the PCP was issued on September 30, 2011, and was subsequently served upon Mr. Cleaton. The Administrative Complaint was styled “Florida Board of Professional Engineers v. Frank Cleaton, P.E.” It was accompanied by an Election of Rights form, headed with “State of Florida, Florida Engineers Management Corporation,” advising Mr. Cleaton of his right to request an informal or formal hearing within 21 days of receipt of the Administrative Complaint. The complaint was filed by FEMC on behalf of the Board. The Department of Business and Professional Regulation (the Department) played no active role in the investigation or prosecution of the case. FEMC did not notify the Deland Building Department or the owner of the screen enclosure of its finding of "17 serious material deficiencies." Pursuant to Mr. Cleaton?s demand, an evidentiary hearing under sections 120.569 and 120.57(1), Florida Statutes, was scheduled to be heard on September 25, 2012. On or about March 2, 2012, Mr. Berryman submitted to FEMC the calculations he had performed prior to his June 20, 2011, opinion letter to FEMC, so that they could provided to Petitioner. Mr. Cleaton?s expert, Mr. Thomas Campbell, submitted a report dated September 12, 2012, which was provided to FEMC the following day. Mr. Campbell concluded that the Birchmont screen enclosure plans met the “evolving” FBC (2007-2010)2/ and the Aluminum Design Manual (2005). He concluded the screen enclosure was adequately built and safe. His report asserted that any errors in the engineering tables that were not actually used in constructing the Birchmont structure should be considered irrelevant. The report stated that all maximum member moments were “well below allowable” and all member interaction ratios (axial and bending) were well below 1.0, with one exception. The 2 x 2 section exceeded that ratio by less than 9 percent and was in tension. The report concluded that this was well within the acceptable range for the conservative evaluation that was conducted. Mr. Berryman reviewed Mr. Campbell?s report and concluded that his analysis failed to determine allowable stresses for the aluminum framing members in accordance with the 2005 Aluminum Design Manual, as was required by the FBC. Mr. Berryman found that Mr. Campbell?s opinions did not comply with accepted engineering practice and that his analyses were unreliable and replete with errors. However, Mr. Berryman also examined some load test results for self-mating beams that had been prepared for “Aluminum Enclosures Suppliers Council” and “Town and Country Industries, Inc.,” aluminum manufacturing companies in the State of Florida, which had been supplied along with Mr. Campbell?s opinion. These test results were proprietary information that was not available to Mr. Berryman prior to Mr. Campbell?s report. While these data were incomplete and had not been verified by industry professionals and regulatory authorities, Mr. Berryman concluded that they suggested at least the possibility of an alternate method of determining allowable stresses that might be helpful to Mr. Cleaton?s designs. Although the data in the test reports diverged from the design methodology described as acceptable in the FBC, the Code allows some departures from these standards when an alternative analysis has been reasonably justified. Mr. Berryman therefore recommended that many of the charges in the Administrative Complaint should not be pursued until the proprietary data could be validated or invalidated. On September 21, 2012, Respondent filed an unopposed Motion to Cancel Hearing, Relinquish Jurisdiction and Close File. An Order Closing File was issued by the administrative law judge on September 21, 2012. On September 27, 2012, Respondent filed a Motion to Dismiss Administrative Complaint and Close File with the Board. Petitioner did not respond to the Motion. On November 7, 2012, the Board entered its Final Order dismissing the Administrative Complaint filed against Petitioner. Mr. Cleaton is a prevailing small business party within the meaning of section 57.111, Florida Statutes. On November 9, 2012, Petitioner filed a Motion for Attorney Fees and Costs with DOAH seeking attorneys' fees and costs under the provisions of section 57.111. Mr. Cleaton incurred attorneys? fees and costs in defending his license against the Administrative Complaint initiated by the Board. Attorneys? fees in the amounts of $11,456.25 for Sheppard, White, and Kachergus, P.A., and $30,247.50 for McCabe Law Group, P.A., are reasonable. Mr. Cleaton retained the services of Mr. Campbell to be his expert witness. Mr. Campbell in turn enlisted the services of NuVision, an engineering company he owns, to assist in preparations for his testimony. Mr. Campbell is an expert in structural engineering. Mr. Campbell and NuVision are based in Pennsylvania. The claimed expert witness fees of $48,037 are excessive. This amount reflected some 176 hours spent by three engineers, 16 hours for their administrative support, and $22 for travel expended at NuVision, as well as an additional 65 hours of time spent by Mr. Campbell, 30 hours of administrative support for him, and $715 in travel spent by Mr. Campbell?s firm, TEC Enterprises. Testimony offered by Mr. Campbell indicated that the claimed hours represented only about half of those actually expended, and that none of the claimed costs were for time spent in learning specific requirements unique to Florida, such as the FBC. A reasonable cost for Petitioner?s expert witness was $15,000. Mr. Berryman credibly testified that 100 hours of time would have been ample for the engineering work; that $250 per hour for a supervising engineer, $200 per hour for a senior engineer, and no more than $100 per hour for an entry-level engineer were reasonable rates; and that senior engineers were not required to do the necessary calculations. Allocating 25 hours to Mr. Campbell as supervising engineer and 75 hours for entry-level engineers to make the calculations, and applying the hourly rates mentioned in this paragraph would be reasonable. Adding another 5 hours of Mr. Campbell?s time at the supervising engineer rate for the final preparation of his testimony and actual hours at the deposition is reasonable. No special circumstances exist that would make an award of fees and costs unjust. The documentation provided to the PCP was not misleading, was not missing critical information, and contained required allegations of fact. The PCP?s finding was supported by expert opinion and had a solid basis in law and fact. The PCP?s actions in directing the filing of an Administrative Complaint were substantially justified.
The Issue Whether the Petitioner violated Section 489.129(1)(a), Florida Statutes, by obtaining licensure by fraud or misrepresentation.
Findings Of Fact The Petitioner is the state agency responsible for licensure of certified general contractors. The Respondent Lawrence I. Paul, III, ("Respondent") is a licensed general contractor, holding State of Florida licenses GC C046485 and CG CA46485. On or about December 12, 1988, the Respondent submitted his application to the Department of Professional Regulation seeking leave to take the examination for certification as a general contractor. The Respondent subsequently took and passed the certified general contractors examination. In his application, the Respondent states that he is qualified to take the examination by virtue of having four years of proven experience as a workman or foreman of which at least one year was as a foreman. On the experience verification form submitted to the DPR as part of his application the Respondent states that from January, 1977 to January, 1980, he had been employed as a construction workman and that from January 1980 to January 1981 he had been employed as a construction foreman. The application includes an experience verification form executed by the Respondent and Paula Wisnik, a New York licensed architect. The form indicates that the Respondent had experience in steel erection form work, masonry walls, concrete slabs, footings, site work, excavation, rebar, trusses, and floor and ceiling joists, in single family residences, strip stores and high rise condominiums ten stories and higher. The experience verification form executed by Ms. Wisnik and the Respondent states as follows: I have read the CANDIDATE INFORMATION BOOKLET and reviewed the experience requirements and understand that any false information provided on this form may subject the person(s) signing below to disciplinary action and possible loss of license. I understand that DIRECT KNOWLEDGE does NOT mean that I am relying on a statement from the applicant that he has met the requirements. Ms. Wisnik has no direct knowledge of the Applicant's experience or of the applicant personally. Her knowledge was based upon information provided to her by Peter Wendt, another licensed architect. The Respondent originally sought to have Mr. Wendt complete the experience verification form. Mr. Wendt forwarded the form to Ms. Wisnik and she subsequently signed the document. Mr. Wendt has no direct personal knowledge of the Respondent's experience as set forth on the experience verification form. Mr. Wendt did not meet the Respondent until the Respondent's move to Florida, which occurred subsequent to the period of employment identified in the application. The greater weight of the evidence establishes that at the time the application was completed, the Respondent did not have the claimed four years of proven experience as construction worker or foreman. The Respondent's application states that first he became employed in the construction trade in January, 1977. In fact, he became employed full time in late December, 1978, with Paul Brothers, Inc., a family owned fire restoration business in Philadelphia. He worked primarily as a salesman and estimator with Paul Brothers until June, 1982, a period of approximately three and one-half years. Although there were periods when the Respondent worked on- site, it was not his primary responsibility throughout the employment period.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order revoking the licensure of Lawrence I. Paul, III, as a certified general contractor, license numbers GC C046485 and CG CA46485. DONE and RECOMMENDED this 19th day of October, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1992. APPENDIX TO CASE NO. 92-0193 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1. The proposed finding is modified to reflect that the Respondent did not hold the licenses prior to examination. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5. Rejected, illogical and unsupported by evidence. 6-7. Rejected, not supported by credible and persuasive evidence. COPIES FURNISHED: Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert G. Harris, Esq. Senior Attorney Dept. of Professional Regulation 2295 Victoria Avenue #263 Fort Myers, Florida 33901 Timothy J. Murty, Esq. 1633 Periwinkle Way, Suite A Sanibel, Florida 33957 Wellington H. Meffert, II Chief Construction Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750
The Issue The single issue for determination is whether Petitioner is entitled to at least three more points on his response to question #121. If not, he has failed the examination.
Findings Of Fact Kenneth A. Carper graduated summa cum laude with a bachelor's degree from the University of Central Florida. In the nine years since graduation he has worked for an engineering firm primarily in the area of drainage design. Question #121 is the type of problem he deals with daily. The ultimate objective of the question is to determine whether the flow of an open channel with given specifications is subcritical or supercritical. The question required the computation of the channel's critical depth and normal depth. In the hypothetical situation described by the question, certain extraneous information was given. An appropriate answer required that this "red herring" be ignored. The ISSP is a standardized grading device by which a person subjectively grading a problem will consistently apply a score based upon specified types and numbers of deficiencies. The intent is to reduce the chance of over-leniency or an overly strict approach by different graders. The ISSP developed by the National Council of Engineering Examiners for question #121 provides in pertinent part: 10. QUALIFIED: All CATEGORIES satisfied, correct solution, well organized, all relevant ASPECTS fully addressed. Correct approach; numerical answers correct within rounding errors; conclusion correct; adequate written records. All parts are of equal weight (3 parts). 9. QUALIFIED: All CATEGORIES satisfied, correct solution but exces- sively conservative in choice of working values; or presen- tation lacking in completeness of equations, diagrams, orderly steps in solution, etc. All correct, as in 10 above, except for a single math/units error; or inadequate written record. 8. QUALIFIED: All CATEGORIES satisfied, errors attributable to misread table or calculating devices. Errors would be corrected by routine checking. Results reasonable, though not correct. All correct, as in 10 above, except for multiple math/units errors; or inadequate written record; or in combination. 7. QUALIFIED: All CATEGORIES satisfied. Obtains solution, but chooses less than optimum approach. Solution is awkward but reasonable. Same as 8 above, except for more gross errors; or in combination; or a single part of three parts required completely wrong or missing, with the other two parts correct. 6. QUALIFIED: All CATEGORIES satisfied, applicant demonstrates minimally adequate knowledge in all relevant ASPECTS of the item. Multiple math/units/records errors; or in combination; or one part completely missing or wrong, with other errors; or in combination. (Joint Exhibit 1) The grader of Carper's examination did not testify, but provided notations on the answer sheet. The solution required selection of an appropriate formula, which Carper did; it also required a trial and error mathematical computation of the value of "y." In the first part of the question Carper found "y" to be "... between 9.2 and 9.3, say 9.3'." The grader crossed out this answer with the notation,-- "not an engineering answer-Finish iteration to a close enough' final value." The grader's answer was 9.24. In the second part of the question, Carper indicated "y" was "... between 6.8 and 7.0, say 7.0'." The grader's answer was 6.99, and similar notations, were made, "not an engineering answer. Finish the iteration." It is apparent that the grader felt that the solution should be carried out to the nearest hundredth place. Yet, in a very similar question (#421), also requiring computation of normal depth, Carper's answer, 4.7' was marked "OK", and he received the full 10 points for his solution. Nothing in the instructions specifically requires a solution to the nearest hundredth. This is left to the judgement of the engineer. "Real world" engineering practice would not require a solution to the nearest hundredth place. The design of a large open channel is substantially less precise than the design of a bridge or multi-story building. In hydraulics, the practice is often to round up, for example, from a 9.8 to 10, as a conservative measure. It is also common to use estimates; for example, the roughness coefficient (resistance of the channel walls) is a textbook figure, rather than one derived from the structure itself. Given the lack of precision inherent in the formula, the computation of value beyond the tenth place serves no valid purpose. The sample solution to #121 provided by the grader specifically states "ignore backwater curve." While Carper's solution does ignore the "red herring," his work sheet does not affirmatively note that he did. Respondent claims that the grader could not know whether the back water curve was properly ignored, or just overlooked. At worst, this minor deficiency constitutes an inadequate written record. The appropriate score, based on the ISSP table reflected in paragraph 4, above, is "9." Carper selected the proper formula, performed the mathematics and arrived at answers reflecting acceptable engineering practice. The descriptions of deficiencies for the scores of less than 9 do not apply to Carper's solution for this question. Respondent's expert conceded that the solution did not contain a mathematics error. In making these findings I have considered and weighed the opinions of the three experts who testified in this proceeding. Both experts presented by Petitioner were qualified, without objection, in the engineering fields of hydraulics, hydrology and water resource management. They both have over 30 years of extensive practical experience in those fields, and they both have lectured or taught in colleges and universities. The weight of their testimony is tempered by their personal knowledge of Petitioner for eight or nine years and by their knowledge of the score he needed to pass the examination. Nothing in the substance of their testimony, however, revealed a bias in favor of their colleague, and their testimony was considered candid and forthright. They would have scored #121 as "9" or "10". Respondent's expert, a consulting engineer, employed as an Associate Professor in the University of Florida Civil Engineering Department did not know Carper, nor was he advised of the score he would need to pass. He would have given Carper a "6" or "7" on question #121, but more likely a 7, based on Carper's failure to carry his answer to "three significant figures." This opinion was not adequately explained in terms of acceptable engineering practice, but rather was based on acceptance of the test grader's judgement. (Joint Exhibit #2, Deposition, p. 29) Respondent's expert was less qualified than Petitioner's experts. His primary experience as a consulting engineer has been in review of the work of others, rather than active design.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: That a Final Order be entered, awarding Kenneth Carper 9 points for question #121, thereby providing a passing grade for the engineering examination. DONE and RECOMMENDED this 29th day of February, 1988, in Tallahassee, Florida. MARY CLARK 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 29th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4979 The following constitute my rulings on the findings of fact proposed by the parties: Petitioner 1-5. Addressed in Background. 6-7. Adopted in paragraph #11. 8. Addressed in Background. Respondent Addressed in Background. Adopted in substance in paragraph #3. Adopted in paragraph #10. Adopted in substance in paragraph #10. Adopted in paragraph #9. Adopted in substance in paragraph #5. Rejected as unsubstantiated speculation. COPIES FURNISHED: Brian E. Currie, Esquire SANDERS, McEWAN, MIMS & MARTINEZ, P.A 108 East Central Boulevard Post Office Box 753 Orlando, Florida 32802-0753 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Board of Professional Engineers Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neal, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
