The Issue The issue for consideration in this case is whether Petitioner should receive additional credit for his answers to questions 121 and/or 222 on the civil/sanitary engineer examination administered on April 18 and 19, 1997.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency in Florida responsible for the licensing of professional engineers in this state and for the regulation of the engineering profession. Petitioner graduated from the University of South Florida in December 1990, with a degree in geo-technical engineering, a sub-specialty of civil engineering. He is not, nor does he claim to be, a structural engineer. He has practiced in the field of geo-technical engineering since his graduation and has taught soil mechanics at the master’s level at the university. He sat for the professional engineer’s examination administered by the Respondent in April 1997. Thereafter, by grade report dated July 29, 1997, the Department’s Bureau of Testing notified Petitioner that he had earned a score of 69.00 on the examination he had taken. Since a passing score for the examination which Petitioner took is 70.00, Petitioner failed the examination. Petitioner requested a formal hearing to challenge the grading of examination questions numbers 121 and 222, on each of which he earned a score of four. The maximum obtainable score on each question is ten. On question 121, the candidate is given a situation involving a sheet-pile wall section, and is asked to (a) sketch and dimension the earth pressure diagram acting on the wall after the proposed dredging has been completed; and (b) determine the factor of safety against the kick-out after the dredging. Scoring of the Petitioner’s examination was done by the National Council of Examiners for Engineering and Surveying (Council). The Council determined that, with regard to requirement (a), Petitioner’s pressure distribution was of the correct form, but the labeling of the distribution had a major error. Petitioner assumed an incorrect factor which was deemed to be a major error calling for, under the approved scoring plan, a minimum four-point deduction. With regard to requirement (b), Petitioner chose not to solve for the factor of safety as he was required to do. This resulted in a minimum reduction of two additional points. This evaluation was concurred by Mr. Adams, the Board’s expert witness, in his testimony at hearing. Mr. Adams noted that where, as here, the engineer is dealing with soil mechanics, the at-rest conditions are one thing. The active and passive (A and P) conditions are the more dynamic, and here, where the problem calls for removal of soil from in front of a retaining wall, A and P pressures should have been used instead of at-rest pressures. Adams also concluded that Petitioner’s cited authority was not valid in this case. This authority used the at-rest pressure coefficient when all the authorities Mr. Adams could find used the A and P pressure coefficient. Petitioner admits that the coefficients utilized in determining earth pressures are A, P and at-rest (O). In this case, the whole problem must be considered. A tie-back system is presented, and in that case the sheet pile and the tie-back are assumed to hold the soil behind the wall in an at-rest condition so long as the sheet-pile wall does not move or deflect. Petitioner contends that Mr. Adams’ determination that removing the soil would destroy stasis and cause the wall to move is erroneous. In fact, he contends, the sheet-pile wall and the anchor system must move before the Board’s argument holds. He cites an authority in support of his position which was also cited to the Council scorer who, at Petitioner’s request, rescored his answer. The Council official who rescored Petitioner’s answer did not have access to Petitioner’s cited authority but rejected the citation as either incorrectly cited or incorrect in itself. Petitioner’s error called for a four-point reduction in score as to (a). Further, as to requirement (b), Petitioner, though asked to solve for the factor of safety against rotation, chose not to do so. This calls for an additional two-point reduction. Independent review of Petitioner’s answer, including an evaluation of his cited authority, and consideration of the other evidence pertinent to this issue, including his testimony, that of his witness, and the rescoring results by the Council, does not satisfy the undersigned that Petitioner’s answer merits additional credit. The score of four, as awarded, is appropriate. Question 222 deals with a cantilevered retaining wall with a wide foundation and piling in two rows, some in front and some in back, to support it. The candidate is required to determine the total lateral thrust per linear foot acting on the wall in issue; to determine the vertical load on a front row pile; and to explain possible ways that the pile foundation can resist the lateral thrust. According to Mr. Adams, Petitioner incorrectly calculated the lateral load by omitting the proper depth of the wall. With regard to the vertical loading, the Petitioner did not get to the proper vertical load on the front pile but received partial credit for other calculations he performed. As for the last requirement, one part of Petitioner’s answer was incorrect in that he did not explain passive pressures properly. What Petitioner mentioned was incorrect, and he did not mention battering of the piles, which was expected to be noted. According to Mr. Adams, Petitioner got two parts of the question correct, each of which is worth two points. Therefore, he received a score of four points. Petitioner contends that the Board and the Council are being too restrictive in their approach to the problem and not taking into account the whole problem. He claims that though he arrived at the wrong figure in calculating the lateral load, that does not justify his receiving no credit for that segment since the method he used for calculating the thrust was correct. He admits to having erroneously neglected the weight of the soil, but contends that his method of determining the solutions to resist lateral thrust is as good as that of the Board and the Council. Petitioner was given only partial credit for his use of the correct equation to calculate the lateral thrust because he used the wrong depth. His answer to the second part was wrong in that he completely neglected the weight of the soil and calculating the pile load, even though he used the correct figure to multiply the load per foot of the wall. His answer to the third requirement, dealing with lateral resistance of the pile, was insufficient to warrant a full award. Taken together, his answer, in the opinion of the Council’s scorer, merited only an award of four points. Petitioner did not show sufficient basis for increasing this award. The evidence presented by the Board clearly established that both questions in issue provided enough information to allow the candidate to answer them correctly, and both are questions that a candidate for licensure should be able to answer. The scoring plan for these questions was not shown to be inappropriate, and there is no evidence that it was not properly utilized.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order in this matter denying Petitioner additional credit for his answers to Questions 121 and 222 on the April 1997 Civil Engineer Examination. DONE AND ENTERED this 30th day of April, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1998. COPIES FURNISHED: Henri V. Jean 3273 Tanglewood Trail Palm Harbor, Florida 34685 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether respondent's license as a registered roofing contractor should be disciplined for the reasons set forth in the administrative complaint.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: At all times relevant hereto, respondent, Raymond D. Simmons, was licensed as a registered roofing contractor having been issued license number RC 0055320 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). He has been licensed as a roofing contractor since November 1987. The Board's official records reflect that on July 1, 1991, the license was placed on the delinquent status for non-renewal and is now considered "invalid." 1/ When the events herein occurred, respondent was the qualifying agent for Simmons and Sons Plumbing and Roofing, Route 1, Box 191 (County Road 225), Waldo, Florida. Except for this action, there is no evidence that respondent has ever been disciplined by the Board. On May 3, 1988, respondent submitted a proposal to Charles and Thea Ansman to repair the roof on their home located at 5132 N. W. 29th Street, Gainesville, Florida. With minor modifications, the proposal was accepted by the Ansmans on May 10, 1988. According to the agreement, respondent was to perform the following services: Tear off old shingles dry-in with 15 lb. felt and replace with Corning Owens 20 year fungus resistant shingles. Replace all plumbing stacks and ease drips. Will replace back porch with 3-ply build-up roof will coat it with roof coating 10 year warranty on workmanship 20 year manufactor [sic] on shingles and build-up roof. Will replace all wood that needs to be replaced. Although the agreement does not specifically refer to ridge vents, the parties also agreed that respondent would install a ridge vent on the home. On May 16, 1988, respondent made application for a building permit from the City of Gainesville to "reroof" the Ansman's home. The permit was issued on May 20, 1988, in the name of Simmons & Sons Plumbing and Roofing. Respondent commenced work on the project on May 16 and continued the work over a period of several days. During this period of time, respondent was frequently on the job site overseeing the work. Indeed, Thea Ansman said respondent was at her home approximately half of the time while the repairs were being made. Thus, while respondent undoubtedly supervised the job, for the reasons stated in findings of fact 6 and 7, he nonetheless failed to "properly" supervise the work. On May 20, 1988, Thea Ansman paid respondent in full for the work. Although the job was not finished, respondent told Mrs. Ansman he would return the next day to complete the work. When respondent failed to return, the Ansmans repeatedly telephoned him during the next few months, but respondent either refused to speak with the Ansmans or told them he would return within a few days. However, the work was never finished and respondent never returned to the job site. While inspecting the roof one day, Charles Ansman noted that the roof trusses, an intregal part of the load bearing capacity of the structure, were cut at their peaks. The depth of the cuts was between one and two inches and was apparently the result of a saw-blade not set at the proper height when the ridge vent was installed. Sometime in July or August 1988 Charles Ansman discussed the damage with respondent and requested that respondent repair the same. Respondent refused to do so on the ground he was not responsible for the damage. Ansman then filed a complaint with the City of Gainesville Building Department. On September 9, 1988, a city building inspector inspected the home and confirmed that virtually every truss was cut and that the integrity of the roof was in jeopardy. He also observed that the soffits were improperly installed in some cases, and in others, were missing altogether. A notice of violation was then issued by the city on October 3, 1988, charging respondent with violating the Standard Building Code in two respects. More specifically, it was charged that respondent's workmanship violated sections 1701.1.1 and 1708.2.1 of the 1985 Standard Building Code, as amended through 1987. These sections pertain to the quality and design of wood trusses and the design of trussed rafters, respectively. At a hearing before the city's Trade Qualifying Board, respondent admitted his workers had violated the cited sections and caused the damage to the trusses. However, respondent denied liability on the theory that the workers, and not he personally, had negligently damaged the house. Respondent was thereafter issued a letter of reprimand for his actions. In order to recover their damages, which included the replacement of all damaged trusses, the Ansmans filed suit against respondent in Alachua County small claims court. On April 18, 1989, they received a judgment in the amount of $1,050. The judgment was eventually satisfied but only after the Ansmans threatened to levy on respondent's real property located in Alachua County. In preparation for the suit, the Ansmans obtained an engineering report which corroborates the findings made by the city building inspector concerning the damage and negligence on the part of respondent's work crew. By allowing the work to be performed in that manner, respondent was incompetent and committed misconduct in his practice of contracting. However, there is no evidence that respondent was grossly negligent during his supervision of the job. Respondent did not appear at hearing. However, prior to hearing he spoke to the city building inspector and acknowledged that the roof trusses were damaged as the result of negligence on the part of his crew. He also admitted this during the final hearing on the small claims action. At the same time, he denied that his workers had ever touched the soffits. This assertion, however, is rejected as not being credible.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is, recommended that respondent be found guilty of violating Subsection 489.129(1)(m), Florida Statutes (1987), and that he pay a $1000 fine and his license be suspended for one year. RECOMMENDED this 16th day of December, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 16th day of December, 1991.
Findings Of Fact The Respondent is a duly-licensed professional engineer in the State of Florida having been issued License No. PE0035663. The Petitioner is an agency of the State of Florida charged, in pertinent part, with interpreting, enforcing, and regulating concerning the licensure and professional practice standards for professional engineers in the State of Florida embodied in Chapter 471, Florida Statutes. The Respondent practices engineering as Dr. S.K. Nayak & Associates, Regulatory, Environmental and Civil Engineering Consultants. That engineering firm is not licensed as a professional engineering firm in the State of Florida. On September 20, 1988, the permit to the JNC by the Department for its domestic waste-water treatment and disposal system expired. Thereafter, on June 16, 1989, an application to operate such a system was submitted to the Department by Mr. Cordes on behalf of the JNC. The Respondent was the professional engineer of record depicted on that application. On or about July 14, 1989, the Department issued a notice of permit denial concerning that application and cited six deficiencies as the basis for the denial. The notice of permit denial identified the JNC's reclaimed water distribution system as not being designed in accordance with sound engineering principles and practices, as delineated in Rule 17-6.070(1)(a), Florida Administrative Code, and the design as not being provided in the manner required by Rule 17-610.414, Florida Administrative Code. The permit applicant was thus advised by the notice of permit denial that some modifications for the water distribution and storage system would have to be undertaken and completed in order for permitting to be effected. Thereafter, on or about January 30, 1990, the Respondent submitted a design statement for a reclaimed water disposal system to the Department. The design must conform to certain criteria enunciated in Chapter 17-610, Florida Administrative Code. The design for such a system must be accompanied with an engineering report to document geohydrological conditions at the site and to document that a ground water mounding analysis has been performed for the percolation pond systems, in order to verify that the systems will perform satisfactorily under the pertinent provisions of Chapter 17-610, Florida Administrative Code. The Department considered the design submitted by the Respondent to constitute the necessary design for the application for a new operating permit for the JNC. Expert witness Bryant Marshall's testimony establishes clearly that the creation of the design and its submittal to the Department constitutes a specific type of engineering practice and moreover that that sort of design requires a specific type of geotechnical and geohydrological engineering experience. Upon reviewing the design statement submitted by the Respondent, the Department advised Mr. Cordes of numerous items of incompleteness which would need to be addressed before an evaluation of the proposal, including design, could be performed. Mr. Cordes was informed of this by letter from the Department of February 23, 1990, which was copied to the Respondent. See, Exhibit B in evidence. Upon reviewing the design submitted, the Department determined that, because of the limited data and analyses and absence of calculations in that design document, that the Respondent had not demonstrated that he was qualified to perform such geotechnical and hydrogeological engineering, with pertinent calculations and depictions as was required for a project such as that proposed, nor had that type of required engineering work been done. Ultimately, therefore, it filed a complaint against the licensure of the Respondent with the Petitioner licensing agency. On April 9, 1990, the Respondent submitted a signed and sealed withdrawal of the design statement previously submitted to the Department. The Respondent contends that he never intended that the design statement originally submitted should constitute the final "as built" design for the water reclamation facility involved. Rather, he contends that it was intended by the Department, by himself, and by his client to be merely a preliminary or suggested design solely for purposes of negotiation concerning the permit denial and an attempt to work out a satisfactory arrangement with the Department in terms of the Department's conditions and requirements for design and construction, so that the proposed facility could be permitted. The Respondent contends that that was not the practice of engineering but, rather, submittal of a preliminary design statement which he claims the Department required of him. He thus submitted the design statement with the full understanding that it was not intended by him, or by the Department for that matter, to be a feasible final proposal or design and knowing that it was not up to standard or intended to be and knowing that it did not comply with certain applicable rules and regulations, he did not sign or seal it. Mr. Marshall, the expert witness put forward by the Petitioner, opined that the submission of substandard work, merely because another party has requested it for negotiating purposes, or for whatever reason, still is not acceptable practice for a licensed professional engineer. Merely because one is of the intent and opinion that submittal of the work will not be the final work product, by which the facility in question is to be built, is no excuse for not complying with proper standards of professional engineering practice. The Respondent's soil and ground water data was shown by Mr. Marshall to be inadequate because it did not provide for the necessary calculations which could indicate whether the performance of the system will actually meet the design criteria, given the geotechnical soil and hydrogeological conditions prevailing at the site, which were not adequately allowed for by their entry into proper calculations which should have been performed by the Respondent. The Respondent's professional history moreover does not reflect adequate geotechnical or hydrogeological experience and training necessary for a project such as the JNC at issue. It has been established by Mr. Marshall's testimony, which is adopted, that standards of practice were not followed because an appropriate subsurface exploration geotechnical investigation, laboratory soil testing, engineering analysis, and ground water mounding analysis was not performed. Even if the Respondent had adequate training in geotechnical and hydrogeological engineering, he promulgated a deficient engineering document in terms of this design, regardless of whether or not it was signed or sealed, because it constituted the practice of professional engineering and yet he failed to perform and to indicate on his design that the geotechnical and hydrogeological investigations required for such work had been performed. The document was based only on a review of available published information regarding surficial and sub-surficial soil conditions. No test borings were done in accordance with standard practice. The percolation testing performed by the Respondent was shown by Mr. Marshall to be inadequate under the circumstances of the project for which design was being considered. The proper geotechnical exploration, in keeping with standard engineering practice, would require the use of soil test borings to depths of 20 to 30 or perhaps 40 feet below ground surface. This would be necessary to properly characterize the aquifer and subsurface conditions and to evaluate the properties of the soil within that zone to determine what the actual hydraulic characteristics of the subsurface profiles would be. It would then be necessary to perform laboratory permeability testing on the soil samples from the various depths so as to properly characterize the aquifer performance or predicted aquifer performance for the entire depth zone to those significant depths. Just the top 18 or 20 inches of soil is not an adequate investigation. Further, the Respondent provided no documentation for his conclusions regarding established ground water movement, established surface water flow, and confirmed ground water table elevations. According to Mr. Marshall, it is safe to assume that surface water flow might be to the southeast given the site's topography and the fact that the ground slopes downward toward the southeast and generally toward the east, as well. However, the Respondent provided no documentation of any test borings or other site-specific geotechnical investigation work done to verify anything about the direction of ground water flow nor the ground water table elevation. Apparently the Respondent relied upon general information contained in a soil survey of Jefferson County but did not do site-specific investigatory work, in keeping with standard engineering practice, which would allow him to make those types of conclusions in a legitimate fashion. Mr. Marshall thus opined and established that the submission of the work by the Respondent was substandard work and that it is not justifiable engineering practice to submit such substandard engineering work, even if it is done at the request of another party with an understanding between the engineer and the other party and the client that this work is merely to be a preliminary design for purposes of negotiation between the regulator and the client. It is also no excuse for such substandard engineering practice that the Respondent submitted it without it being signed or sealed in his capacity as an engineer. The lack of the signing or sealing does not render it immune from having to comport with standard, acceptable engineering practice. Accordingly, it has been demonstrated that the Respondent was negligent in the practice of engineering in these particulars, with regard to his participation and design concerning the JNC project. Because the Respondent intended that this be a preliminary submittal, solely for the purposes of negotiation between himself, his client, and the regulatory agency and did not intend that it be a final design to be built in an attempt to comply with regulatory requirements, he has not been shown to have intentionally committed misconduct in the practice of engineering.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Board of Professional Engineers finding the Respondent guilty of violating Section 471.033(1)(g), Florida Statutes, to the extent that he is guilty of negligence in the practice of engineering and that he be issued a reprimand and that his licensure be placed in probationary status for a period of one year with reasonable terms to be decided by the Board, including the requirement of continuing professional education in the area of compliance with appropriate professional practice standards. DONE AND ENTERED this 4th day of March, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 4th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-7994 Petitioner's Proposed Findings of Fact 1-23. Accepted, to the extent they are consistent with the findings of fact of the Hearing Officer and otherwise as subordinate to the Hearing Officer's findings of fact. Respondent's Proposed Findings of Fact Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not being entirely in accordance with the greater weight of the evidence; to some extent, irrelevant; and to some extent, as being legal conclusions and not proposed findings of fact. Rejected, as not being entirely in accordance with the greater weight of the evidence, as constituting an incorrect conclusion of law, and as subordinate to the Hearing Officer's findings of fact on this subject matter. 4-5. Rejected, as not in accordance with the greater weight of the evidence in its entirety, as constituting argument rather than a proposed finding of fact, and being an incorrect conclusion of law. 6. Rejected, as not in accordance with the greater weight of the evidence in its entirety, as constituting argument rather than a proposed finding of fact, as being an incorrect conclusion of law, and to some extent, irrelevant. COPIES FURNISHED: Anthony Cammarata, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Shrinivas K. Nayak 3512 Shirley Drive Tallahassee, Florida 32301 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0755
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent George W. Morrison was a registered residential contractor holding license number RR 0021945. On April 28, 1979, respondent entered into a contract with T. Joseph Feeney to construct a residence and pool on Sanibel Island "according to plans and specifications approved and signed by both parties" for the sum of $100,200.00. Construction on the residence was begun by respondent in late August, 1979. In January, the Feeneys desired to move into the home because they were having difficulty locating rental property. At that time, construction was not completed and neither a final inspection nor a Certificate of Occupancy had been obtained. Although construction had not yet been completed and respondent advised Mr. Feeney that it would be against the law to move into the house before a Certificate of Occupancy was obtained, Mr. Feeney and his family moved into the house on or about January 12, 1980. During the first week of occupancy, Mr. Feeney noticed that there was a sag in the bearing wall of the kitchen and that the house "swayed considerably." According to Mr. Feeney, after he was advised by Mr. Benson, a structural engineer, to either move out of the house or to "shore the house up, he attempted to contact the respondent. Mr. Feeney could not recall whether this occurred in late January, February or March of 1980. Being unable to contact the respondent, Mr. Feeney found his carpenter, Doug Hale, and explained the problem to him. Hale saw respondent that same day and respondent instructed Hale and his crew to go out to the Feeney residence that afternoon and shore the house up. Mr. Hale did notice a deflection and observed that one span was sagging down a small amount. He observed that the bridging work had been nailed from the top and recalled that the bottom nailing was to be performed after the house had settled. When performing the preventive shoring, Mr. Hale noticed that the bolts had been properly installed with washers. The bolts would have been retightened after the wood had dried and before calling in for a final inspection. Upon learning of the structural deficiencies in the Feeney residence, respondent hired his own structural engineer, Charles Wunder, and took the plans and specifications for the Feeney residence to him. Mr. Wunder found that the original drawings, plans and specifications caused the deflection problem in that the framing members used for the ledger beams were not of sufficient strength to hold up in the area where they were placed. Wonder's remedial plan was to use additional beam supports and steel flitch plates. He so advised the respondent by a letter dated February 12, 1980 and an attached sketch for the remedial work. After receiving Mr. Wunder's plans to remedy the structural defects, respondent ordered the steel plates and had them delivered to the Feeney residence. When respondent went there to perform the work, Mr. Feeney informed him that he wanted the work performed according to Mr. Benson's plans and blueprints. Benson's plans were much more involved and extensive, and respondent did not have the materials available to perform the work. Thereafter, an impasse occurred between Mr. Feeney and the respondent as to the manner in which the structural remedial work should be performed, and respondent was terminated by Mr. Feeney on or about April 13, 1980. Both respondent and his engineer, Mr. Wonder, believed that Mr. Benson's plans were "overdesigned" and massive compared to what needed to be done to make the residence structurally sound. Respondent testified that his engineer's plans for remediation would result in a cost of about $1,000.00. Mr. Feeney testified that he incurred costs of approximately $21,000.00 to have the remediation work performed according to Mr. Benson's plans. There was evidence that at least a portion of this figure was attributable to decorative and swimming pool work, as opposed to structural work. In late February or early March, 1980, after the preventive shoring had been completed by Doug Hale, the Building Official for Sanibel, George E. Blain, inspected the Feeney residence at Mr. Feeney's request. Mr. Blain found that the flooring and joist system had been installed according to the plans and specifications submitted and approved for the building permit. He could not give an opinion as to the cause of the deflection of the beams, but felt that there appeared to be a problem with the construction which could be corrected in the normal construction phase. A violation of the Southern Standard Building Code would occur only if the problem were not corrected at the time of final inspection, and this project had not yet been called up for such final inspection. While Mr. Blain found that some of the bolts were not properly placed or tightened at the time of his inspection, he found nothing to indicate that the required number of nails were not in place. After his inspection, Mrs. Blain wrote a letter to the respondent expressing his opinion that extensive remedial work was necessary to stabilize the floor support system of the Feeney residence. Respondent was instructed to have a registered engineer examine the floor support system and submit a report detailing the requirements necessary for loads stability. This report was to be received by Mr. Blain's office prior to the commencement of any corrective work by the respondent. Mr. Blain never received a response from the respondent to his March 5, 1980 letter. Respondent explained that he did not receive this letter from Mr. Blain until some time near the time that he and Mr. Feeney had reached an impasse situation with regard to the manner in which the remedial work was to be done. He therefore did not respond to Mr. Blain's letter because he did not believe that he would be performing the work.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against George Morrison on March 8, 1982, be DISMISSED. Respectfully submitted and entered this 10th day of March, 1983, in Tallahassee, Florida. DIANE D. TREMOR, 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 10th day of March, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street (Suite 204) Tallahassee, Florida 32301 Allan T. Griffith, Esquire Griffith & Griffith, P.A. 9150 S. Cleveland Ave. (Suite 1) Ft. Myers, Florida 33907 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Petitioner, Subhash C. Jethi, was a candidate on Division C of the national professional architectural examination given in June, 1984. The test is prepared by the National Council of Architectural Registration Boards (NCARB) and is administered by the Educational Testing Service in Berkeley, California. Florida candidates take the national examination pursuant to an agreement between NCARB and respondent, Department of Professional Regulation, Florida Board of Architecture (Board). The examination consists of nine divisions administered over a four day period. Division C relates to building design and contains one graphic or sketch problem to be solved by the candidate in not more than twelve hours. The purpose of the examination is to require an applicant to prepare a design solution in response to the program submitted by the NCARB. Prior to the examination, the candidate is given a preexamination booklet setting forth the architectural program to be accomplished and the various requirements expected of the candidate to receive a passing grade. Each graphic solution to Division C is blind graded by three examiners (architects) designated and approved by the NCARB. The examiners are drawn from a pool of architects who have been selected by the various architectural registration boards of some twenty states. They are given training by NCARB prior to the examination to standardize their conceptions of the minimal competence required for a passing grade. Among other things, they are instructed to grade holistically, that is, to review each solution quickly for an overall impression and to score on the basis of that first impression. They do not regrade solutions or analyze specific points of presentation. The examinee is always given the benefit of the doubt in all cases. Candidates may receive a score ranging from 0 to 4. These numbers represent the following grades: 0-totally blank solution pad (fail) 1-incomplete (or extremely poor solution)(fail); 2-poor(fail); 3-minimally acceptable (pass): 4- good (pass). In order to pass, a candidate must receive at least two pass grades from the examiners. In Jethi's case, three examiners graded his solution and gave scores of 3, 2 and 2, respectively. Because the first grader gave him a 3, a fourth grader (also known as a coordinating grader) independently reviewed his examination and assigned a score of Therefore, he received an overall score of 2 which is a failing grade. This proceeding arose as the result of Jethi's request for an administrative hearing to contest that grade. Jethi's solution to Division C was introduced into evidence as respondent's exhibit 2. In support of his claim that he was entitled to a passing grade, Jethi presented the testimony of a registered architect, Miles A. Price, Jr., who reviewed Jethi's solution and found it to be acceptable and consistent with the requirements of the problem. However, Price had no experience in grading the national examination, and his comments were given in the context of a practicing architect rather than as a grader. Petitioner also offered a letter from an architect essentially adopting the position of Price. Jethi testified at length on his own behalf, and basically disagreed with most of the criticisms given by the examiners. He also attempted to show that his solution was better in certain respects than a sample solution to the problem which was deemed to be minimally acceptable for a passing grade. Respondent presented the testimony of Professor Arnold Butt, who was accepted as an expert in grading architectural examinations. Professor Butt was chairman of the University of Florida department of architecture for some fourteen years, has graded the examination in question since 1970, and is presently the chairman of the master jurors committee which performs the fourth grading on these examinations when required. His testimony is deemed to be more credible and persuasive than that presented by petitioner, and is hereby accepted as dispositive of the issue of whether petitioner's solution to Division C should receive a passing score. In this regard it is noteworthy that three of the four graders reviewing petitioner's examination, including Professor Butt, found the examination to be below the minimum requirements. On this particular examination, Division C required candidates to design a two-story architectural pavilion for a world's fair site in Chicago, Illinois. The candidates were specifically told the structure was to be an "architectural gem" and was to take maximum advantage of a scenic overlook of Chicago's downtown loop area. The primary deficiency in petitioner's solution was his failure to make maximum use in his design of the scenic overlook relating to Chicago's loop area as required by the problem. In addition, his solutions as to the location of service access, book store and restrooms, structural system, pedestrian circulation, and building site were shown to be deficient. Taken as a whole, they rendered his solution to Division C less than minimally acceptable for passing. Therefore, the overall score of 2 should not be changed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's failing grade received on Division C of the June, 1984 national architectural examination not be changed. DONE and ENTERED this 22nd day of October, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22 day of October, 1985. APPENDIX* 1. Proposed findings 1 through 7 have been essentially incorporated in the findings of this Recommended Order. *Petitioner did not file proposed findings of fact. COPIES FURNISHED: Mr. Subhash C. Jethi 1101 Oriole Avenue Miami Springs, FL 33166 John J. Rimes, III, Esq. The Capitol, LL04 Tallahassee, FL 32301
The Issue The issue to be determined is whether Respondent held himself out as a certificate holder in violation of section 468.629(1)(a), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of building code administrators and inspectors pursuant to section 20.165 and chapters 455 and 468, Part XII, Florida Statutes. At all times material to the allegations in this case, Respondent was licensed as a standard inspector in Florida, having been issued license number BN 5106. Respondent also held provisional licenses as a plumbing inspector and a mechanical inspector. Both licenses expired on January 24, 2009. Respondent's license as a standard inspector did not permit him to perform plumbing or mechanical inspections. Therefore, after January 24, 2009, he was not authorized to perform them. From February 3, 2003, to October 20, 2009, Respondent was employed by Wakulla County as a building inspector. The Wakulla County Building Division uses inspection cards to track information related to permits and inspections on permitted building projects. While these information cards are not required by state law, the information is a useful tool for the building division and inspectors were expected to complete them. An inspector's initials next to a particular inspection on an inspection card indicate that the inspector identified by initials performed the applicable inspection. If an inspector fails to sign the card when an inspection is completed, the card might be updated by another inspector who, after confirming the inspection had taken place, would initial for the other inspector and then put his or her own initials in parenthesis. For example, if Respondent conducted a framing inspection, he would identify the type of inspection in the "type" column and in the column titled Inspect., would put OKRN. If he failed to sign the inspection card and someone confirmed that he had performed the inspection, the notation would read, OKRN (CI). A permit was issued for a mechanical upgrade at an existing church located at 953 Sopchoppy Highway. On April 23, 2009, Respondent signed the inspection card indicating that he had performed the re-inspection of the project. A permit was issued on March 31, 2009, to install plumbing in an existing commercial building located at 2500 Crawfordville Highway. Respondent signed the inspection card for two separate inspections: the rough slab on April 1, 2009, and the final inspection on July 29, 2009. On April 23, 2009, a permit was issued to install plumbing in existing restrooms at a building located at 1362 Old Woodville Highway. On April 24, 2009, Respondent signed the inspection card indicating that slab plumbing inspection had been performed and the work had passed inspection. On June 22, 2009, a permit was issued to install plumbing for a building at 71 Riverside Drive. On June 23, 2009, Respondent signed the inspection card indicating that the rough plumbing inspection had been performed and the work had passed inspection. Respondent's provisional mechanical and plumbing inspector licenses had already expired at the time that he signed the inspection cards identified above. Respondent did not advise his supervisor, Luther Council, when his provisional plumbing and mechanical inspector licenses expired. Mr. Council testified that he, rather than Respondent, actually performed all four of these inspections and that Respondent simply signed the inspection cards. Respondent's employment with Wakulla County was terminated on October 20, 2009. On November 25, 2009, a complaint was opened by the Department of Business and Professional Regulation, alleging a possible violation of section 468.629(1)(a), Florida Statutes. The complaint was assigned DBPR Case Number 2009-061682. On December 1, 2009, Respondent was notified by letter of the complaint filed against him, and was given an opportunity to file a response to the complaint. A memo was generated on January 29, 2010, regarding the April 14, 2010 probable cause panel meeting. DBPR Case Number 2009-061782 was listed on this memo, under a category described as "Cursory Reviews." No evidence was presented to indicate what directions were given regarding the complaint by the probable cause panel, or whether the April meeting actually took place. Probable cause was found June 9, 2010.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Building Code Administrators and Inspectors dismiss the Administrative Complaint in its entirety. DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 28th day of December, 2010. COPIES FURNISHED: Elizabeth F. Duffy, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Richard Larry Noles 62 Quail Run Crawfordville, Florida 32327 Robyn Barineau, Executive Director Building Code Administrators and Inspectors Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues in this case are whether Respondent, August T. Nocella, committed the violations alleged in the Administrative Complaint and, if so, what discipline is appropriate.
Findings Of Fact Petitioner, the Pinellas County Construction Licensing Board (Board), is the agency within Pinellas County, Florida, authorized under Chapter 89-504, Laws of Florida, as amended, to regulate and discipline the licenses of, among others, certified aluminum contractors. Respondent, August T. Nocella (Respondent), is, and has been at all times material hereto, a certified aluminum contractor in Pinellas County, Florida, having been issued license C-3197. At times relevant to this proceeding, Respondent was doing business as Allied Aluminum, located in St. Petersburg, Florida. In 1997, Ms. Mary J. Pugh had a small screened porch added to her house located at 12855 Gorda Circle West. Approximately two years later, in July 1999, the porch was damaged or destroyed by a storm. Thereafter, Ms. Pugh requested and received a proposal from Allied Aluminum to repair or rebuild the screened porch. On September 1, 1999, Respondent entered into a contract with Ms. Pugh to repair or reconstruct the previously existing screened porch. The contract provided that Respondent would install a new aluminum roof to replace the damaged existing screened porch roof, install gutters and trim, replace 13 feet of valance, replace the screen, and install a new wall front. The contract noted that a riser wall was required for "proper roof pitch." The contract price was $2,300.00, with $1,000.00 to be paid as a down payment and the remaining $1,300.00 to be paid upon completion of the project. Ms. Pugh paid Allied Aluminum in accordance with the terms of the contract. She made the first payment of $1,000.00 on September 1, 1999, and made the final payment of $1,300.00 on September 22, 1999, upon Respondent's completing the job. On or about September 16, 1999, Respondent obtained a permit for the repair or reconstruction of the screened porch at Ms. Pugh's house. Respondent began the project on or about September 15, 1999, and completed the job on September 22, 1999. Section 105.6 of the Standard Building Code, 1997 Edition, as amended,(Standard Building Code) requires local building officials, "upon notification from the permit holder or his agent," to make a final inspection of a building after the building is completed and ready for occupancy. In order to comply with the Standard Building Code, it was the responsibility of the permit holder, in this case, Respondent, to call local officials for a final building inspection. Upon completion of the inspection, a building official would then notify the permit holder of "any violations which must be corrected in order to comply with the technical codes." Respondent failed to notify building officials that the Pugh project was completed and ready for occupancy and, thus, ready for final inspection by appropriate building officials. As a result of Respondent's failure to call for a final inspection, building officials never inspected Respondent's work on Ms. Pugh's screened porch and made no determination as to whether the project complied with the applicable technical codes. In July 2000, during a storm, the roof of Ms. Pugh's screen porch collapsed. Relying on statements of unnamed contractors, Ms. Pugh believes that the roof collapsed because it did not have the proper pitch. Respondent attributes the collapse of the roof to the gutters being blocked with leaves. Despite these assertions no evidence was presented at hearing to establish the cause of the roof's collapsing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Construction Licensing Board enter a final order: (1) finding that Respondent failed to obtain a satisfactory inspection as alleged in Count One, and is guilty of the offenses described in Chapter 89-504, Subsections 24, (2)(d), (j), and (n), Laws of Florida; (2) imposing an administrative fine of $1,000.00 for the foregoing offenses; and (3) dismissing Count Two of the Administrative Complaint. DONE AND ENTERED this 28th day of December, 2001, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2001. COPIES FURNISHED: Don Crowell, Esquire Pinellas County Construction Licensing Board 310 Court Street Clearwater, Florida 33756 Rodney S. Fischer, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Suite 102 Largo, Florida 33773-5116 August T. Nocella 1017 Robinson Drive, North St. Petersburg, Florida 33710
The Issue This cause concerns whether the Respondent committed certain violations of Chapter 471, Florida Statutes (1989), governing the regulation of licensure and practice of Professional engineers in the State of Florida by certain alleged negligent acts with regard to the preparation of plans for a building and alleged engagement in the practice of architecture beyond the scope of authorized engineering practice.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulating the practice of engineering pursuant to Section 20.30, Florida Statutes, Chapters 455 and 471, Florida Statutes, and with enforcing the licensure standards for registered professional engineers in the State of Florida. The Respondent is a licensed engineer, licensed by the State of Florida, holding license number PE 0029985. His address of record is Charles Stokes Engineering, 3000 Highway 231, North, Lynn Haven, Florida 32404. In 1989, the Respondent contracted with James Carlton to prepare building plans for a restaurant known as the Crab Shanty in Panama City Beach, Florida. Numerous changes were effected in the plans, both before and during construction, such that the restaurant evolved finally as a three-story restaurant built primarily of wood with utility-pole type pilings or posts and beams for framing, including glued-laminated wood beams (glue-lam). An initial set of plans (Petitioner's Exhibit 1) were submitted to the Bay County Building Official, Mr. James Pybus. While the initial 11-page plans depicted in Petitioner's Exhibit 1 lacked some detail, especially with regard to electrical, plumbing, air conditioning and mechanical aspects, the plans were later augmented by an additional 11 pages depicting some of the previously absent details and Mr. Pybus confirmed that the practice of his agency is not to require more detailed plans of such electrical, plumbing, air conditioning, or mechanical work, if it comes within the scope of the exceptions set forth in Section 471.003(2)(i), Florida Statutes (1989). Those exceptions provide that licensed subcontractor, in those fields can design the electrical, plumbing, air conditioner, or mechanical aspects of a project themselves if they have the appropriate contractor's licenses without engineering registration. Therefore, Mr. Pybus' agency does not require that engineers preparing such plans, as to these aspects of the planning work, include such details if licensed contractors for those areas of the construction project will be doing the design and installation work, which was the case in this situation. Personnel under Mr. Pybus' direction inspected the building during construction and preformed a final inspection, all of which confirmed that the construction was in accordance with appropriate building codes. Mr. Pybus opined that his office had reviewed the plans submitted and determined that the plans had depicted sufficient detail for construction in accordance with the applicable codes. The Petitioner presented a consulting engineer, Mr. Harold Benjamin, as an expert witness. Mr. Benjamin opined that the Respondent had exceeded the limits of his engineering experience by signing and sealing plans which entailed mechanical engineering, electrical engineering, and, to some extent, the field of architecture. The Respondent, however, has worked for many years in the nuclear power industry, during which time he was actively involved in electrical, structural and mechanical engineering and design which, by this extensive experience, qualified him to sign and seal plans covering the fields of mechanical and electrical engineering. The evidence to this extent refutes the testimony of Mr. Benjamin, and it is rejected in this regard. Further, although the Respondent preformed a minor amount of architectural work in designing the building, the architectural aspects of his building design were clearly incidental to the major considerations of civil, mechanical, structural, and electrical engineering. Even Mr. Benjamin, the Petitioner's witness, conceded that the architectural aspect of the design work was incidental to the overall plan and design work involved and was on the order of approximately ten percent of the Respondent's work on the project. Mr. Benjamin testified that he observed certain omissions on the plans contained in Petitioner's Exhibit 1. Those omissions involve not showing the proper type of support for some stairs, a foundation plan not being labeled, wall sections not being properly shown, and an absence of an "electrical legend" on the face of the plans. He opined that heating and air conditioning plans were unclear as to duct size, air delivery and quantities to various rooms. Mr. Benjamin acknowledged, however, that he was basing this testimony on only the plans depicted in Petitioner's Exhibit 1, which consisted of the first 11 pages and it was shown that this was not the complete set of plans actually drawn and ultimately filed with the building department by the Respondent, which consisted instead of a total of 22 pages which showed much more detail then Mr. Benjamin had reviewed and upon which he based his testimony. Mr. Benjamin only saw the remaining portion of the plans in question very briefly shortly prior to hearing and acknowledged that many of the omissions had been supplied on the additional plan sheets. Mr. Benjamin also acknowledged in his testimony that flaws in the design alleged by a Mr. Coleman, a "complaining architect" had not been proven in his view and, therefore, the Respondent was not negligent in his design. Upon redirect examination, Mr. Benjamin acknowledged that he only opined that the Respondent was negligent in terms of not consulting with qualified electrical and mechanical engineers with regard to the project because of his previously discussed opinion that the Respondent's engineering experience or expertise did not extend to electrical and mechanical engineering. This opinion, however, has been refuted as delineated above. Concerning the structural design aspects of the building and plans, in view of Mr. Benjamin's letter report to the Department of June 12, 1989, coupled with Mr. Benjamin's testimony that he did not do a complete review of the plans and did not examine the building itself, Mr. Benjamin's testimony has not established any negligence on the part of the Respondent. It affirmatively establishes that any architectural practice the Respondent may have engaged in was only incidental to his engineering design work for the project as a whole. Further, the testimony of Mr. Benjamin to the effect that the air conditioning system appeared to him inadequate to handle the peak load, as generated by restaurant occupancy of nearly 100 people and the restaurant kitchen, it was demonstrated at page 41 of the transcript that Mr. Benjamin had not observed the restaurant and kitchen space at the building in question and was not aware of what the actual occupancy of the restaurant was. Therefore, he is not deemed competent to express expert opinions concerning the adequacy of the air conditioning equipment and design. The Petitioner also presented the testimony of Mr. Berton Hufsey, a mechanical engineer. He was accepted as an expert witness in this field. Mr. Hufsey initially expressed criticism about certain plumbing and HVAC (heating, ventilating and air conditioning) aspects of the plans. Mr. Hufsey acknowledged, however, that because his practice is in the Miami, Florida, area, he was not familiar with the extent of detail customarily shown on engineering plans in the Bay County area and, thus, was not familiar with the professional practice standards in the Bay County area in that regard. Mr. Hufsey initially opined that the grease trap for the restaurant was inadequately sized and that all kitchen and bathroom waste were routed though the grease trap; that the toilet vent was a "dry vent" and that a wet vent, which washes the bottom of the vent pipe, should have been employed. He criticized the absence of details of the water heater and the kitchen ventilating system not being shown to be coordinated and balanced, but acknowledged that two fans were shown and appeared to balance. He also opined that the plans did not show an innerconnect to shut off heat producing equipment when the fire extinguisher system was operating, that exhaust fans or windows were not shown for the bathroom/toilet area, that the gas furnace was not shown to have a flue connection, and that the HVAC system was not shown to have a condensate water drain. Mr. Hufsey acknowledged in his testimony, however, that he thought, based upon this opinion and review of the initial set of the 11-page plans he had reviewed in making his recommendation to the Department, that the complaint had some validity but he would not go so far as to testify that negligence had occurred. Then, when confronted in his testimony by the as-built" plans, which he only saw on the day of the hearing, Mr. Hufsey acknowledged that the grease trap was properly designed, that the kitchen supply and exhaust fans were also appropriately detailed on the as-built plans, as well as the fire sprinkler system, and the air conditioning system. In summary, after reviewing the actual as-built, 22-page set of numbered and sealed plan sheets prepared by the Respondent, Mr. Hufsey acknowledged that the omissions and lack of detail noted on the first 11-page set of "rough plans" had been corrected with the exception of the "dry vent" for a toilet. Mr. Hufsey, however, acknowledged in regard to this that an experienced, qualified plumbing contractor would know the correct type of vent to install for the toilet, even if it was not actually depicted on the plans, and acknowledged that professional engineering practice in Florida provides that certain types of jobs can be designed and built by the licensed trade contractors such as plumbers, electrical contractors and mechanical contractors and that these types of trade contractors can design and build the plumbing, heating and air conditioning, and electrical aspects of a job such as this without having the design actually placed in the plans by the licensed registered engineer. See the exception contained in Section 471.003(2)(i), Florida statues (1989). Moreover, the Respondent, in his plans, affirmatively indicated that the sprinkler system had to take priority in its design and location over the mechanical, heating, air conditioning equipment and duct work, as well as the plumbing piping. This was a safety feature in order to ensure that the sprinkler system had effective coverage in the event of fire. Because of this safety feature, noted on the plans by the Respondent engineer, there necessarily had to be some degree of flexibility for installing the HVAC, the duct work~ and the plumbing work for those pertinent, licensed trade contractors. This was an additional appropriate reason why specific detail of the plumbing, electrical, and mechanical HVAC aspects of the job were not firmly and finally designed by the Respondent, because of the necessarily precise location of the sprinkler system shown on page 15 of the as-built plans. Thus, because of the exception allowed in the statute for design of HVAC, plumbing, and electrical work by the appropriate, licensed trade contractors and because of the priority the Respondent himself noted on the plans for the sprinkler system design and installation, it has not been shown that the Respondent was negligent in regard to the lack of detail on the plans for HVAC, electrical and plumbing design. Further, Mr. Hufsey acknowledged in his testimony concerning the alleged water heater detail deficiency, the lack of depiction of the air conditioning condensate drain, the furnace flue, and air supply; that experienced, licensed trade contractors in those relevant trades would be able to design and build those features into the building appropriately within the exception allowing them to do so at Section 471.003(2)(i), Florida Statutes. Mr. Garcia testified as an expert in the field of electrical engineering. Mr. Garcia stated that the plans submitted for the permit were deficient as to electrical items, thereby demonstrating negligence. Specifically, Mr. Garcia found that the initially submitted plans depicted no "panel scales"; no electrical risers; no load analysis; no specifications for lighting fixtures; insufficient detail to show compliance with the national electrical code and the energy code; that emergency lighting did not comply with the national electrical code; that no electrical legends were depicted; that circuits were not properly identified for lighting fixtures; that no schedule specifying light fixtures were shown; and that stairs were not shown to have the required emergency lighting. Mr. Garcia acknowledged in his testimony that the later, as-built plans depicted in Petitioner's Exhibit 8 showed that many of these items were corrected, although not all of them. He acknowledged, however, that on a project of this size that a licensed electrical contractor could design and build the required electrical items, equipment, and service, including the items he found not sufficiently depicted on the plans, without the services of a licensed engineer for the design, in accordance with the exception provided at Section 477.033(2)(i), Florida Statutes. Mr. Garcia testified, however, that a prudent engineer, if he omitted such detail from his plans, should make a notation on the plans to that effect to indicate that that design detail was to be provided by the licensed electrical contractor performing that aspect of the job. The Respondent failed to make this notation. The Petitioner presented the testimony of James Owen Power, a structural engineer accepted as an expert witness in that engineering field. Mr. Power expressed criticism concerning the Respondent's plans as demonstrating negligence in the practice of engineering in the following particulars: Sheet 2 of Exhibit 1 shows a roof over the third floor, sheet 3 shows no roof. The details on sheet 5 of Petitioner's Exhibit 1 related to the girder layout indicated glue laminated wood beams with insufficient notes to guide the contractor. The stairs of the south elevation were shown in two locations and did not show proper detail to show attachment to the building, nor that they met life safety standards. Sheet 5 of Petitioner's Exhibit 1, according to Mr. Power, shows a connection of the glued laminated wood member to a girder which was structurally inadequate because of the type and manner of bolting. The plans contained in Petitioner's Exhibit 1 used to obtain the building permit were somewhat confusing because certain irrelevant notes were written on the right hand side of sheet 1 of those plans. The piling construction notes, according to Mr. Power, called for 8 X 8 square pilings or 8 inch round marine treated pilings, but the drawing showed 12 inch round pilings. Sheet 6 of Petitioner's Exhibit 1 is confusing in that it is unclear whether it should be applied to the second or third floor, or just one of those two floors because the sheet specifies metal stud walls but does not indicate the gauge or size of the metal studs, nor did Mr. Power find the details sufficient to show how the walls should be framed at the top under the second floor trusses. Petitioner's Exhibit 1 allegedly shows insufficient detail with regarding to flashing and, finally, Mr. Power opined that there was not proper specification with regard to attachment of sheet metal to an overhang. Mr. Power's testimony was directed to Petitioner's Exhibit 1, the initial preliminary plans submitted for purposes of obtaining the building permit. Although building permit submittal plans should depict sufficient detail to show that a safely constructed building will result which will comply with appropriate building codes, it is not expected, as Mr. Pybus demonstrated, that all details be shown, especially in this case where certain planning details are appropriately and legally left to the designing and building performance of licensed trade contractors for the electrical, plumbing, and HVAC aspects of the building. Mr. Power's testimony does not demonstrate that the plans in Petitioner's Exhibit 1 would not have resulted in a safely constructed building which could comply with the building codes. In any event, the as-built set of plans drawn and designed by the Respondent (Petitioner's Exhibit 8), coupled with Respondent's unrefuted testimony, shows that these alleged deficiencies did not exist or had been adequately depicted in the as-built plans. The alleged improper connection of the glue lamented wood members to girders was actually demonstrated by the Respondent's testimony to be structurally adequate and in accordance with good, safe engineering practices. Concerning the alleged life safety standard violations regarding the stairs, Mr. Power acknowledged he had no architectural expertise, and was not qualified to render such an opinion, and the Respondent's case in chief shows that there was a change order regarding the stairs which legitimately accounts for the two different locations shown. Further, concerning the piling size complaint of Mr. Power, the Respondent demonstrated that the 8 inch sectional dimension of the pilings was the minimum diameter specification, which becomes obvious when it is taken into account that the drawing showed 12 inch round pilings. Accordingly this aspect of Mr. Power's criticism is invalid and is not indicative of negligence in the practice of engineering. The matters concerning the gauge or size of metal stud walls, the flashing, the depiction of roofs for the second and third floors, and the attachment of sheet metal to the overhang involved structural changes made during the course of construction as the result of legitimate agreements between the Respondent and the owner, as well as apparent deficiencies which were actually corrected on the final set of signed and sealed plans. Accordingly, these criticisms from Mr. Power do not reflect inadequacies or negligence in the practice of engineering in this regard either. Further, although Mr. Power expressed criticism concerning non- compliance with the statutory requirement for the drawings to be signed and sealed by the Respondent engineer, on cross examination he acknowledged that the Respondent had- in fact, attached to his final plans a cover letter and an index which had been signed and sealed with the appropriate raised seal and that each sheet of the drawing incorporated under that cover letter by reference was, in turn, appropriately identified by a stamped, red ink seal. Thus, the final plans were appropriately signed and sealed. Finally, it should be pointed out that none of the expert witnesses presented by the Petitioner had viewed the structure involved and none was able to testify competently that the structure had not, in fact, been finally designed, in the final plans, and constructed in a manner which would result in an improperly constructed, unsafe building. The Respondent presented the testimony of Mr. James Carlton, one of the owners of the building. Mr. Carlton established that he retained the Respondent to perform engineering services and that he did not want or need an architect because he had already conceived the architectural design of the building based upon his experience in the restaurant business. Mr. Carlton established that he was satisfied with the services provided by the Respondent and described his close cooperation with him and his supervision of the construction as very satisfactory. In fact, Mr. Carlton described the Respondent as working late at night seven days a week and always readily responding if changes were needed or desired by the owner or the contractors. Mr. Carlton described in detail the structural soundness of the building, even when subjected to 80 MPH winds and the weight and movement of crowds involving hundreds of people, which corroborated the Respondent's own testimony regarding the substantial structural soundness of the resulting building. The Respondent also presented the testimony of Henry Skipper, the contractor who actually constructed the building. Mr. Skipper confirmed that the plans provided adequate guidance for construction and for the work which was to be actually performed by licensed subcontractors in the trades of mechanical, electrical, plumbing, and HVAC. Mr. Skipper corroborated the fact that the Respondent was readily available to assist the contractors and subcontractors and the owner and to ensure that the building was properly constructed at all stages. Mr. Skipper found that the Respondent's plans contained the appropriate amount of detail treatment which he was accustomed to encountering in the preparation and use of building plans in the Bay County construction industry over a period of many years. Mr. Skipper's testimony appearing at pages 110 through 120 of the transcript specifically refutes the claims by Petitioner's witnesses concerning the adequacy of the design or construction of the stairs, the exterior walls, the glue--lam beams, the metal roofing and sheet metal detail, the perimeter walls, and the electrical, mechanical, plumbing, and HVAC aspects of the project. His testimony is accepted. Respondent testified in his own behalf and described his extensive experience as a professional engineer. In refuting the Petitioner's claims that he had worked outside his training and experience in terms of mechanical and electrical engineering, he established that he has many years of experience, derived from the nuclear power industry primarily, as well as to some extent in the sanitary sewer engineering design field by which he acquired extensive expertise in electrical mechanical, as well as structural engineering design. He is a licensed professional engineer in Alabama, Georgia, and Florida, and has been certified by the State of Florida as a Designated, Threshold Engineering Inspector. He has been approved for state employment as a professional engineer-mechanical III and a professional engineer-electrical I. His testimony appearing at pages 147-160 of the transcript together with the testimony of Mr. Skipper, the contractor, and the owner, Mr. Carlton, refutes the Petitioner's criticism concerning his design of the HVAC, plumbing, electrical, and structural aspects of the bui1ding. The Respondent established, in fact, that his design of the laminated beams and the method of connection of them, in fact, exceeded the recognized engineering and structural design requirements. Although various of the Petitioner's witnesses, as well as the Respondent in his testimony, established that sufficient detail concerning the mechanical, electrical, HVAC, and plumbing portions of the project were depicted on the plans so that appropriately licensed trade contractors practicing in those fields of contracting could do the final design and installation of those aspects of the project, the Respondent did not refute the showing by the Petitioner's witnesses that, as to the electrical equipment and service design portion of the project, the Respondent failed to properly note on his plans that flexibility for appropriate design and installation of the electrical segment of the project was being left to the licensed electrical subcontractor. In this regard then, it was established that the Respondent was negligent in the practice of engineering. It was not established that the Respondent engaged in any fraud or misconduct in the practice of engineering however, nor that he practiced architecture beyond the purview of his engineering licensure, in more than an incidental way.
The Issue Whether Respondent violated Sections 489(1)(d),(j) and (m), Florida Statutes?
Findings Of Fact At all times relevant Respondent was licensed as a registered residential contractor in Florida and held license number RR0046781. Sometime in late April, 1985, Respondent entered into a contract with Mr. Reames. The contract called for Respondent to build a house at 1512 S.E. 24th Avenue, Ocala, Florida. Mr. Reames moved into the house on December 23, 1985, after a certificate of occupancy was issued, even though the house was not fully completed. Mr. Reames completed a "punch list," consisting of an undetermined number of items which needed to be completed, and asked Respondent to complete the items. Most items in the punch list were never completed by Mr. Huey. After the initial attempt by Mr. Reames to get Huey Construction Co. to complete the items in the punch list, Mr. Reames did not contact Huey Construction Co. about the other problems found subsequently. In March or April, 1986, Mr. Reames noticed that the wood floor was buckling and separating. He contacted Mr. Gassett, the person who had installed the floors, who determined that a water leak was causing the problem. In November, 1986, Mr. Reames hired Mr. Clyatt, a licensed general contractor, to inspect the house, to go over the punch list items which needed to be completed, and to correct other items which were discovered to be inadequate. In the first week of January, 1987, Mr. Norton, the chief building inspector for the City of Ocala, was asked by Mr. Reames to inspect the house. Mr. Norton found a number of problems and identified some violations of the City of Ocala Building Code (Code) which was in effect at the time the house was built. The inadequacies, problems and code violations found by Mr. Clyatt and Mr. Norton are set forth below. Ventilation The Code requires 1 sq. ft. of opening for each 150 sq. ft. of crawlspace, in order to provide ventilation. Since the house had 2720 sq. ft. of crawlspace, it needed 18 sq. ft. of openings. The house, however, had only 6 openings of 1 sq. ft. each, or 6 sq. ft. of openings. Additionally, the plans for the house indicated where the openings were to be located and the completed house did not meet the plan specifications in this area. Mr. Clyatt added 15 openings, 8 in. by 12 in. each. In addition to the inadequate openings, one area of the crawlspace was completely enclosed, with no ventilation. The Code requires that attic ventilation for this type of house be 1 sq. ft. of opening for each 300 sq. ft. of space. The plans called for 3 in. by 12 in. vents at 24 in. intervals. The openings in the house were approximately 2 in. in diameter and were placed sporadically. From a visual inspection, without taking actual measurements, the openings for attic ventilation were inadequate and did not provide the ventilation required by the Code. Roof The roof of the house contained exposed nails and staples on the shingles, including some which had rusted. Nails and staples should not be exposed on a shingle roof, since they can lead to leaks. The roof leaked in one area in the back of the house. Mr. Reames contacted H & B Roofing, the subcontractor who had installed the roof, who corrected the problems with the roof. Driveway The Code requires that a driveway permit be obtained prior to the installation of a driveway. Also, the Code requires an inspection of the driveway prior to the concrete being poured. Respondent obtained the required permit, but failed to call for the required inspection prior to pouring the concrete. By letter dated December 10, 1985, Respondent notified the Building Inspection Office of the City of Ocala that the driveway was poured according to the Code. By the time of the inspections by Mr. Norton and Mr. Clyatt, several cracks were present in the driveway. SubFloor Due to the water damage set forth in paragraph 5, supra, the wood floor was removed in late December, 1986 or early January, 1987. The plans originally called for the subfloor to be constructed of one-half inch plywood decking, particle board, and 15 lb. felt paper. However, the Code requires subfloors to be constructed using three-quarter inch plywood, and the plans contained a penciled in notation where the one-half inch was changed to eleven- sixteenths. The subfloor had been constructed using one-half inch CDX plywood decking with particle board on top. No felt paper had been used. Additionally, the subfloor had been nailed in violation of the Code. The Code requires nails to be spaced two and one-half inches on the perimeter of the plywood and four inches in the interior area of the plywood. The subfloor of the house contained boards which had only been nailed on the perimeter and boards which had a large number nails in one area, far in excess of the amount required by the Code. Girders When Mr. Clyatt inspected the house he discovered that approximately 6 of the wood girders supporting the floor appeared to have been cut short and, instead of bearing on the stem wall bearing plate, were supported by posts made of two-by-four and two-by-six non-pressure treated lumber. The posts were resting on soil and the bottom part of the posts had decayed. This construction is a violation of the Code which requires that pressure treated wood be used, and is a violation of construction standards which require that the girders rest on the bearing plate or on concrete. See Petitioner's Exhibit 6. Also, the girders supporting the wood floor were not resting directly on the block piers. Wood shims had been added to fill the space between the girders and the block piers. The wood shims were not pressure treated. The Code requires that pressure treated wood be used in this situation. Additionally, proper construction requires that the girders rest directly on the block piers. Foundation Wall A foundation wall was not bearing on the footing properly. The foundation wall was constructed of 8-inch block and portions of the wall had only one to two inches bearing on the footing; the rest of the wall was resting on the soil. This is a violation of the Code. This problem was corrected by Mr. Clyatt by removing the soil on which the wall rested and pouring concrete under the wall. See Petitioner's Exhibit 7. Cabinets The cabinets in or near the utility room area of the house were loose and separating from the soffit and the wall.
Recommendation Therefore, based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order reprimanding Respondent and imposing a fine of $1500.00. DONE and ORDERED this 31st day of October, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 31st day of October, 1988. APPENDIX Case Number 88-5570 The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph Accepted. RO1. Accepted. RO2. Accepted. RO3,4. First sentence, Accepted RO7. Second sentence accepted for proposition that Mr. Reames paid Mr. Clyatt $30,000 for work done on the house. However, the evidence fails to establish what portion of this amount was paid for problems caused by Respondent. 5-10. Accepted generally as to what Mr. Clyatt observed. RO19,20. But see discussion in Conclusions of Law portion of this RO. Accepted. RO13. Accepted generally. RO14. Respondent was not asked to repair the shingles when this deficiency was discovered about one year after Respondent had ended work on the house. First sentence rejected. Second sentence, accepted R016, but no competent substantial evidence was presented to show what caused the cracks. Accepted generally as to what was observed. RO22. But see discussion in Conclusions of Law portion of RO. Accepted. RO18. Accepted. RO18. Accepted. RO21. Accepted. RO21. Accepted. RO10,11. Accepted. RO10,11. Accepted. RO17. Accepted. RO12. Accepted. RO12. Accepted. RO15. Accepted. RO15. Accepted. RO8. Respondent's Proposed Findings of Fact Respondent's post-hearing statement consists of a two page letter with attachments. The attachments have been addressed in the Background section of this Recommended Order. The proposed findings of fact contained in the letter are addressed below. References are to paragraphs and sentences within each paragraph. Proposed Finding of Fact Number Ruling and RO Paragraph Par. 2 RO2 establishes that a contract existed; no finding is made as to whether the contract was oral or written, or as to what the contract amount was. Par. 3 First sentence is not supported by the evidence. Second sentence, accepted. Third-Fifth sentences rejected as not supported by competent evidence; however, no finding is made as to who is at fault for this problem. See Conclusions of Law. Fifth sentence is not a finding of fact. Par. 4 Not a finding of fact. Par. 5 (References are to statements after each number in the paragraph) #8 is accepted generally. RO15. #9 rejected as not supported by competent evidence. #10 rejected as not supported by competent evidence; some of the allegations were proven to exist as set forth in this RO. #11 and 12 are not findings of fact. COPIES FURNISHED: David L. Swanson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert D. Huey 3710 Southeast 12th Place Ocala, Florida 32670 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
