The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a Florida licensed professional engineer, holding license number PE 39759. In 2002, the Petitioner undertook an evaluation of the Respondent's design for construction of the Hunter's Creek Community Association Town Hall. The design was completed in 2001. The Respondent submitted the plans at the Petitioner's request and pursuant to a Final Order filed January 10, 2000, by the Florida Board of Professional Engineers. The Final Order required the Respondent to periodically submit a list of completed project designs to the Petitioner. The Petitioner selected project designs at random for review. The Final Order also directed the Respondent to comply with various statutory requirements. Following its review of the submitted plans and additional dialogue with the Respondent, the Petitioner brought the instant disciplinary proceeding against the Respondent. Section 1601.2.1 of the 1997 Standard Building Code requires that structures "be of sufficient strength to support the loads and forces encountered, or combinations thereof, without exceeding in any of its structural elements the stresses prescribed elsewhere in this code." Design of a structure must accommodate the various loads to a proposed structure. The "gravity load" is the weight of the structure itself. The "live load" is the transient weight of the objects (persons, furnishings, vehicles, etc.) within the structure. "Lateral loads" are horizontal forces generated against a structure by such natural forces as earthquakes or hurricanes. "Vertical loads" consist of uplift- type wind forces. Acceptable standards of engineering practice require that a professional engineer design the structure to accommodate the various loads without exceeding the allowable load values of the components. Essentially the allegations against the Respondent are that according to the plans submitted, allowable load capacities for certain materials specified in the plan were exceeded and that some materials were improperly specified. Insofar as is relevant to this proceeding, the plans specified use of Simpson H-3 framing anchors ("Simpson H-3 anchor") at three locations, a 49'-4" wall and two 20'-0" walls. The plans also specified use of Simpson MGT anchors at a number of locations. The Simpson H-3 anchor was an 18 gauge metal plate, commonly referred to as a "hurricane tiedown." The Simpson H-3 anchor was used to connect a wooden truss to a wooden sill plate or to the top part of a wall. The manufacturer identified the lateral load design capacity of each Simpson H-3 anchor as 125 pounds-per-linear- foot. The Simpson MGT anchor was a "medium girder tiedown" anchor. The Simpson MGT anchor consisted of a heavy-gauge metal plate and metal straps used to connect a masonry wall to a girder. At the hearing, the Petitioner presented the testimony of Joseph Berryman, P.E. Mr. Berryman testified that according to the project plans, 54 H-3 anchors were specified for the 49'-4" wall. Mr. Berryman testified that dividing the load calculation identified in the Respondent's plans by the specified number of anchors resulted in a load of approximately 245 pounds-per-linear-foot. Mr. Berryman testified that application of the same calculation to the load identified in the project plans for the two 20'-0" walls resulted in a load of approximately 380 pounds-per-connector. Mr. Berryman further testified, after additional review of the Respondent's documentation, that his original identification of the load to be accommodated at the two 20"-0" walls was incorrect and that the actual load per connector was in excess of his initial calculation. The Respondent provided testimony and evidence indicating that Mr. Berryman's analysis was overly conservative and failed to consider the load-carrying capacities of other structural elements. Such elements included the Simpson MGT anchors and portions of the building, such as walls and floors, that reduce the load being transferred to the Simpson H-3 anchors. The Respondent testified that the Simpson MGT anchor was capable of resisting a lateral load of 2,462 pounds. The Respondent offered the testimony of Wilbur Yaxley, P.E., who stated that the Simpson MGT anchor was capable of resisting a lateral load of 4,541 pounds. The manufacturer of the Simpson MGT anchor has not rated the device for lateral load resistance. There was no credible evidence that the Respondent accurately calculated the lateral load being applied to the H-3 anchors at the time of design. There was no credible evidence that any lateral load resistance calculation or testing was performed on the Simpson MGT anchor prior to construction of the structure at issue in this case. The Respondent further asserted that substantial load resistance was achieved through the "continuity" of the structure, but acknowledged that no calculations related to continuity were performed prior to construction of the project. Absent any credible evidence of reliable pre- construction calculation of the relevant load-bearing capacities of the Simpson MGT anchor or of the structural continuity of the design, Mr. Berryman's testimony regarding the plans submitted and the loads identified is accepted. Based on the plans submitted by the Respondent to the Petitioner, the evidence establishes that the actual design loads for the Simpson H-3 anchors at the 49'-4" wall and the two 20'-0" walls exceeded the allowable design loads of the anchors. The Petitioner further alleges that the Simpson MGT anchors were not "listed" at the time of permitting and construction and, therefore, could not have been installed in accordance with such listing. There is no credible evidence that any witness actually reviewed a "list" to determine whether or not the Simpson MGT anchors were listed. Notwithstanding building code references to "listed" materials, the evidence fails to establish the existence of such a list.
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 finding Robert L. Plowfield, P.E., guilty of violating Section 471.033(1)(g), Florida Statutes (2004), and imposing a penalty of reprimand, $5,000 fine, two-year suspension, and a six-year probation. DONE AND ENTERED this 8th day of August, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 8th day of August, 2005. COPIES FURNISHED: Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303 David P. Rankin, Esquire Law Office of David P. Rankin, P.A. 18540 North Dale Mabry Highway Lutz, Florida 33548 Paul J. Martin, Executive Director Board of Professional Engineers Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Respondent owns and operates a motel in Ft. Myers known as the Shores Motor Lodge. The motel is on the northwest corner of the intersection of Cypress Street and State Road 739 (US Business 41). In the vicinity of the motel, State Road 739 is busy with a projected weekday traffic volume of 57,000 vehicles. The posted speed limit is 45 miles per hour. Petitioner is in the process of widening State Road 739 in the area from four lanes to seven lanes. Cypress Street is a short, residential street. The intersection of State Road 739 and Cypress Street is not at a 90 degree angle. Instead, a vehicle turning right onto Cypress Street must execute a sharp turn of about 135 degrees. The motel is an established property. Guests visiting the motel office have diagonally parked in front of the motel on the State right-of-way separating the motel from State Road 739. The road-widening project consumes nearly all of the right-of- way with road surface and a sidewalk, leaving no room for vehicles to park in front of the motel on the remaining right- of-way. The motel occupies about 50 feet of frontage. On the other side of the motel, to the north, there is a driveway serving an adjacent church. To accommodate Respondent's guests, Petitioner modified the original design to shorten the curb along Cypress Street so that motel guests may turn onto Cypress Street, park alongside the road beside the motel, and walk a few feet to the front office. Respondent's solution is to obtain a driveway, cutting at a 65 degree angle across a wide expanse of the sidewalk and beginning at the southern edge of the church's driveway. This driveway would run only a sort distance at this angle before requiring a sudden turn to the right in order to negotiate a narrow set of supports supporting the motel canopy under which the vehicles must pass. The driveway would run only eight feet from the front door to the office. Respondent's solution is unsafe to pedestrians on the sidewalk and the motel property. It is likely that vehicle operators leaving State Road 739 at a gentle angle would not anticipate the tight passageway that they must navigate, while turning their vehicle further to the right in dangerously close proximity to the front door of the office. Pedestrians on the sidewalk are also endangered by vehicles traveling at high speeds veering off the highway to cross a wide expanse of sidewalk so near an intersection and another driveway. Respondent's solution is unsafe to other vehicles on Cypress Street, State Road 739, and the motel property. Vehicles parked on the proposed driveway block site lines for drivers seeking to exit Cypress Street and are in danger of being rear- ended by vehicles exiting State Road 739 too fast. Likewise, the risk of rear-end collisions on State Road 739 is greater when drivers turning into the motel suddenly notice the narrow passageway that they must navigate or an obstruction in their path. On the other hand, Petitioner's proposal is safe and mandated by operational considerations resulting from the road widening project. There remains reasonable and safe access for motel guests, many of whom are long-term residents who have little need to visit the office.
Recommendation It is hereby RECOMMENDED that the Department of Transportation enter a final order dismissing Respondent's challenge. ENTERED on May 9th, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 9th, 1995. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 ATTN: Eleanor F. Turner, M.S. 58 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Paul Sexton Chief, Administrative Law Department of Transportation Haydon Burns Bldg., MS 58 605 Suwannee St. Tallahassee, FL 32399-0458 Wayne RinkenbacK Shores Motor Lodge 7243 Winkler Rd. Ft. Myers 33919
Findings Of Fact In 1984 and for many years prior Petitioner held a Certificate of Qualification to bid on and be awarded contracts let by the Department. On April 10, 1984, Petitioner entered into a voluntary plea, and was convicted of a one-count criminal violation of Title 15, USC, Section 1, which is commonly known as "The Sherman Antitrust Act." The charge involved a public contract with the Florida Department of Transportation in which Petitioner received a complimentary bid from another contractor who was bidding on the same project which was awarded to Petitioner. This practice is commonly known as "bid rigging." The conviction took place in the U. S. Northern District Court of Florida. Petitioner would have submitted the same bid on this project without the benefit of the complimentary bid. 33 C.F.R, Part 16, provides for a maximum debarment on first conviction of 36 months by a federal agency. Petitioner was debarred by the Federal Highway Administration for only six (6) months based upon a review and determination of culpability of the Petitioner in the crime of which Petitioner was convicted. Immediately subsequent to December 17, 1984, Petitioner was declared acceptable for employment on highway projects which required approval or concurrence of the Federal Highway Administration. On June 18, 1984, Respondent revoked the Petitioner's Certificate of Qualification for a period of 36 months pursuant to Florida Statutes 337.165(2)(a). The only reason given for the revocation was the aforementioned conviction. With the exception of Petitioner, who has never had a decision rendered on a Petition for Reinstatement by Respondent, every contractor who has been debarred and/or had its Certificate of Qualification revoked by Respondent pursuant to Section 337.165, Florida Statutes, who has petitioned for reinstatement, has been reinstated by Respondent. Exhibit "A" hereto is a list of contractors who were debarred by Respondent and were reinstated. It was in the public interest to reinstate each of these contractors. It is in the public interest and the interest of the Respondent to build roads, build them at a good price, and have a competitive bidding system with integrity. Petitioner has promptly and voluntarily continued to pay its fine of $65,000 to the Federal Court. No payment of damages has ever been requested by the State as a result of the Petitioner's violation of state or federal antitrust laws. The Petitioner notified the Respondent within thirty (30) days after his conviction of the contract crime. Petitioner has the manpower, equipment, financial resources, and contracting experience to meet the Respondent's requirements in those areas for the purpose of a Certificate of Qualification. Howard H. Hewitt became affiliated with Square D Contracting Company in 1967 when he acquired a minority interest in the company. He subsequently increased that interest to 50 percent. In 1980 he acquired the remainder of the stock and changed the name of the company to Hewitt Contracting Co., Inc. In 1980 the Florida Attorney General's Office commenced an investigation of bid rigging by road contractors. In February 1983 the Attorney General's Office subpoenaed Hewitt to appear under their Civil Investigative Demand procedures and give evidence about his knowledge of bid rigging in Florida. He appeared and, on the advice of counsel, refused to give testimony claiming protection under the Fifth Amendment. By Court Order, Exhibit 8, dated June 24, 1983, Hewitt was directed to give testimony to the Florida Attorney General under grant of immunity from criminal prosecution and from any civil penalty as provided in s. 542.21(1), Florida Statutes (1981), as to those transactions about which he testifies. In compliance with that order he submitted documents and testified before assistant attorneys general three times. A grant of immunity by the Florida Attorney General's Office would not shield Hewitt from federal prosecution. Following the filing of charges by the Federal District Attorney, Hewitt provided testimony to federal officials several times regarding his knowledge of contract crimes, dropped his membership in the Florida Road Builders Association, started using a different hotel during his appearances in Tallahassee, and limited his contacts with fellow contractors to those necessary to conduct business. In a subsequent damage trial brought by the Attorney General's Office against Ezelle Construction Company, Hewitt advised both parties that he would testify for neither and, upon advice of counsel, would claim the Fifth Amendment if subpoenaed. Neither side subpoenaed Hewitt. The jury found Ezelle not liable for damages as claimed by the Attorney General. The only witness called by Respondent, Assistant Attorney General Bayard W. Heath, testified that the critical part of the bid rigging investigation in which he was involved occurred in 1983 at which time Hewitt asserted the Fifth Amendment privilege and caused a change in the investigation plans of the antitrust division. When Hewitt's counsel in January 1985 advised Heath that Hewitt would take the Fifth Amendment if subpoenaed to testify in the civil damages suit brought against Frank Ezelle, et al., he released Hewitt from the subpoena and did not attempt to enforce the subpoena. Petitioner presented one rebuttal witness, the attorney who represented Hewitt during the civil investigative demand procedures by the antitrust division of the Attorney General's Office. He testified that he was never advised by Heath or any other attorney from the Florida Antitrust Division that there was a critical period during which Hewitt's testimony was wanted, or that they were in any manner dissatisfied with the cooperation given by Hewitt after the grant of immunity. This witness also testified that an offer by Hewitt to settle any charges against him by an offer to pay damages to the state was flatly rejected by the antitrust division and that he was told that if Hewitt cooperated with the antitrust division they would decide after the fact what action they would take against petitioner. Prior to the revocation of its Certificate of Qualification in 1984, Square D and subsequently Hewitt Contracting Co., Inc., enjoyed a reputation as a competitive bidder who completed projects in a timely and professional manner. Two witnesses employed by Respondent in the area of Petitioner's headquarters opined that reinstatement of Petitioner's Certificate of Qualification would enhance the road building and construction work in Florida by the addition of Petitioner as an active participant in the bidding process. Subsequent to the conviction in the Federal Court Petitioner prepared a Code of Conduct for Employees of Hewitt Contracting Company (Exhibit 4) and distributed this to all personnel involved in preparing bids for Petitioner. Additionally, Howard H. Hewitt personally approves all bids submitted by Petitioner and supervises those preparing these bids. Howard H. Hewitt expressed remorse about the company's prior activity leading to the conviction and is committed to ensuring that it never occurs again.
Recommendation Based upon the above findings of fact and conclusions of law, it is RECOMMENDED that the application of the L&N Railroad Company to close the Johnson Street or Post Office Road rail/highway crossing be DENIED. Respectfully submitted this 24th day of October, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Dawn E. Welch, Esquire Beggs and Lane Post Office Box 12950 Pensacola, Florida 32576 John Dowd, Esquire Post Office Box 129 Fort Walton Beach, Florida 32548 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32304 Secretary William N. Rose Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32301
