The Issue The issues in these cases are whether the allegations of the administrative complaints are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact The Petitioner is charged with responsibility for regulation of the practice of engineering within the State of Florida. At all times material to these cases, the Respondent has been licensed by the State of Florida as a professional engineer holding license PE40904. At the hearing, the Petitioner presented the testimony of Joseph Berryman, P.E., a professional engineer licensed by the State of Florida. Mr. Berryman was accepted as an expert in structural engineering design, including aluminum structure design. Mr. Berryman's testimony regarding deficiencies in the Respondent's design of the projects referenced herein was clear and persuasive. In response, the Respondent testified that the referenced projects met applicable professional standards, including load and stress standards. The Respondent's primary engineering experience has apparently been in the realm of civil, not structural, engineering. According to Mr. Berryman, the Respondent's calculations included material errors, reflected structural elements other than those identified in the design documents, and revealed misunderstanding and misapplication of engineering precepts. The Respondent's testimony has been rejected. Mr. Berryman's testimony has been credited. DOAH Case No. 12-1635PL (Del Vecchio) On October 7, 2011, the Respondent signed, sealed, and dated a one-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at "3611 Throle" in Rockledge, Florida (the "Del Vecchio" project). The document failed to include elements and information required by the Florida Building Code (FBC) and by the Petitioner's rules. The document failed to identify the height of the mansard rise, failed to detail a proper end connection between diagonal roof bracing and the frame of the structure, failed to identify the size of the "K-bracing" elements included in the design, failed to indicate the size of the corner columns or to show a corner column section, and referenced a design element that had been superseded elsewhere in the document. Additionally, the frame spacing dimensions set forth on the document failed to conform to the width of the proposed structure. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the Aluminum Design Manual (ADM). The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed in the document for compliance with the standard set forth in the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, and purlins) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed by the Respondent has been fully credited. The Respondent's preparation of the design document for the Del Vecchio project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards. DOAH Case No. 12-1636PL (Nunez) On September 20, 2011, the Respondent signed, sealed, and dated a three-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at 4128 Southwest 102nd Lane Road, in Ocala, Florida (the "Nunez" project). The document failed to include elements and information required by the FBC and by the Petitioner's rules. The document failed to identify the height of the mansard rise and failed to detail a proper end connection between diagonal roof bracing and the frame of the structure. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the ADM. The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed in the document for compliance with the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, purlins, cable bracing, anchor bolts, and gusset plates used in a roof beam splice) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed in the Respondent's document has been fully credited. The Respondent's preparation of the design document for the Nunez project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards. DOAH Case No. 12-1637PL (Dunaway) On September 8, 2011, the Respondent signed, sealed, and dated a three-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at 8538 Southwest 135th Street, in Ocala, Florida (the "Dunaway" project). The document failed to include elements and information required by the FBC and by the Petitioner's rules. The document failed to identify the height of the gable rise, failed to detail a proper end connection between diagonal roof bracing and the frame of the structure, failed to indicate the size of the corner columns or to show a corner column section, and failed to identity the metal alloy of a clip used at a detailed shoulder connection. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the ADM. The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed by the Respondent's design document using the information set forth in the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, and shoulder connection fasteners) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed in the Respondent's document has been fully credited. The Respondent's preparation of the design document for the Dunaway project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order reprimanding the Respondent, placing the Respondent on probation for a period of two years under terms and conditions deemed appropriate by the Petitioner, and imposing a fine of $6,000 against the Respondent. Additionally, the final order should prohibit the Respondent from the practice of structural engineering until the Respondent submits to the Petitioner proof of his successful completion of an appropriate examination to be designated by the Petitioner. DONE AND ENTERED this 29th day of August, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2012. COPIES FURNISHED: John Jefferson Rimes, III, Esquire Florida Engineers Management Corp. 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303 Scott Guy Campbell Apartment 805 250 58th Street, North St. Petersburg, Florida 33710 Zana Raybon, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303-5268 Michael Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner's applications for licensure should be granted or denied.
Findings Of Fact Petitioner filed applications with the Department of Business and Professional Regulation (DBPR) for certifications as a plumbing inspector and electrical inspector. The Board of Building Code Administrators and Inspectors (Board), which is part of DBPR, is the state agency charged with certification of plumbing and electrical inspectors, pursuant to Chapter 468, Florida Statutes. Petitioner previously received provisional certification to perform plumbing and electrical inspections as a result of the Board’s failure to take timely action on Petitioner’s applications for provisional licenses. He is currently employed with the City of Deland as a commercial and residential inspector and has been employed there since September 17, 2007. Accompanying his applications was a statement of “experience history”, provided on a Board form. The experience history listed four places of employment covering four periods of time: 1976 to 1986: Job Foreman for Ron Abel Contracting; 2001 to 2005: Standard Inspector for the City of Winter Springs; 2005 to 2007: Standard Inspector for GFA International; and 2007 to present: Standard Inspector for the City of Deland. Accompanying his applications were three affidavits relating to the 1976-1986 employment with Ron Abel Contracting; two affidavits relating to his 2001-2005 employment with the City of Winter Springs; one affidavit relating to his 2005-2007 employment with GFA International; and one affidavit regarding Petitioner’s employment with the City of Deland from 2007 to present. The first affidavit relating to the 1976 to 1986 period of time was from Daniel Kittinger, a licensed general contractor, who attests that when working in his father’s construction business, Petitioner “assisted in the home building process, acted as foreman to oversee [sic] the subcontracting was done in a timely manner and that specifications met code requirements for residential buildings.” The second affidavit for the 1976 to 1986 period was from Carleen Abel, Vice President of Ronald E. Abel Contracting, and states the following: Mr. Jay Abel is the son of the owner and worked as a field foreman from 1976-1986. During his tenure with Abel Contracting, Jay provided supervision of the field operation on overseeing trade contractors. His principle responsibilities included hands on supervision of framing, electrical, plumbing and HVAC sub-contractors for both residential and commercial work. He primarily was to assure that the jobs were properly constructed, completed on time and confirmed that the appropriate codes were satisfied. The third affidavit relating to 1976-1986 did not include the license number of the affiant. Therefore, it was not considered, and is not considered herein, as it does not comply with the statutory requirement that a licensed architect, engineer, contractor, or building code examiner affirm an applicant’s experience by affidavit. Regarding Petitioner’s employment with the City of Winter Springs, an affidavit was submitted by a person whose first name is David (last name begins with an “A” but is not legible) which states that Petitioner was employed as a residential inspector under the direction of Dennis Franklin and under supervision of a senior inspector. This affidavit referenced an attached affidavit of Dennis Franklin which states as follows: I have personal knowledge that Jay Abel worked as a residential inspector in Winter Springs during the time of his licensure as per Chapter 468 F.S. One affidavit was submitted relating to Petitioner’s work experience from 2005 to 2007. The affidavit of Jeffrey D. DeBoer states as follows: During Jay’s tenure at CFA International he performed inspections of 1 + 2 family dwellings and was in training to perform plan review of both mechanical, electrical and plumbing disciplines. This training was done under the supervision of other certified plans examiners for each discipline. The affidavit of Joseph R. Crum was submitted regarding Petitioner’s current employment with the City of Deland. It states in pertinent part as follows: Jay Abel is employed with the City of Deland as an inspector. He is required to perform inspections on commercial buildings and structures for Building, Electrical, Mechanical, Plumbing and gas installations. He is also required to perform inspections on Residential buildings and structures for all of the trades including, Building, Electrical, Mechanical, Plumbing and gas installations. Jay currently holds a standard one and two family dwelling inspector license #BN4928. He also holds provisional licenses as follows: Building #PBI 1573, Commercial Electrical: #PCE 651, Mechanical: #PMI 549 and Plumbing: #PPI 582. Having these licenses means he has met the qualifications for each and should be issued the appropriate license as he passes the individual exams.[1/] In addition to the affidavits submitted by Petitioner, Petitioner’s current supervisor testified at hearing. Matthew J. Adair is the chief building official with the City of Deland. He supervises all of the building division which includes code enforcement and building inspections personnel. He is familiar with the work performed by Petitioner in his current employment with the City of Deland. At hearing, Mr. Adair described Petitioner’s work: Jay is our commercial and residential inspector at this time. He does primarily commercial work for us. I’ve personally overseen the inspections that he conducts on a daily basis. . . [t]o include installation of electrical and plumbing systems in new commercial buildings, main distribution panels, underground electric, overhead, receptacles, feeders. And on the plumbing side the same thing, water, sewer lines, undergrounds, sewer connections even back-load preventers. . . . He’s very competent. He knows the codes, but on top of just knowing the codes he knows how systems are supposed to be installed in the field. He is a competent inspector.. . . He is one of my most valued employees.[2/] Petitioner also submitted an “Educational History” which represents that he holds an associate of arts degree in business. Further, the “Examination History” portion of the form represents that he passed the Florida Principles and Practice Examination. The Board has created an application review committee (committee), consisting of three members of the Board, to review all applications and make a recommendation to the Board as to whether each application should be approved or denied. Dennis Franklin is a member of the Board and the review committee. According to Mr. Franklin, the committee reviews the applications, and makes a determination as to whether an application should be approved or denied. The determination is made by majority vote of the committee. The decision of the committee is then presented to the Board which ratifies the committee’s decision at a Board meeting. The Board generally does not otherwise independently review the applications, but simply ratifies the decision of the committee. The committee met at some point prior to the Board’s April 10, 2009, meeting. The committee reviewed Petitioner’s applications and determined that his applications should be denied. The decision of the committee was ratified by the full Board on April 10, 2009. Robert McCormick is Chairman of the Board and is a member of the committee. According to Mr. McCormick, the Board interprets the statutory requirement of five years’ combined experience to mean that an applicant must demonstrate an equivalent of five years’ full-time experience. Mr. McCormick applied what he described as a “rule-of-thumb,” in which he divided five years into an average of full-time work hours of 2,000 work hours per year and 10,000 work hours for a five-year period of employment. Mr. McCormick determined that Petitioner’s application did not establish that he had worked five years full-time in either the electrical or plumbing trade and, therefore, determined that his applications should be denied. Gary Hiatt is the chief building official of Flagler County and is responsible for the day-to-day management of plumbing and electrical inspectors in that county. He reviewed Petitioner’s applications and is of the opinion that Petitioner “has demonstrated through his background in contracting and licensure as well as his educational background to meet the requirements to be able to sit for that examination.”
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered granting Petitioner's applications for standard certification as a plumbing and electrical inspector. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 3rd day of December, 2009.
The Issue The issue in this case is whether the Petitioner has the actual experience required for certification as a Class B domestic wastewater treatment plant operator.
Findings Of Fact By application filed September 16, 1991, James H. Redden applied for certification as a Class B domestic wastewater treatment plant operator. At the time of the application, Mr. Redden was employed as a laboratory technician at a Class B Collier County regional wastewater treatment facility. From August 15, 1978, to July 31, 1989, Mr. Redden was employed at the Colgate-Palmolive Company facility at Jeffersonville, Indiana. The Colgate-Palmolive treatment facility is an Indiana Class D industrial wastewater treatment plant. Mr. Redden is certified by the State of Indiana as a Class D industrial wastewater treatment plant operator. During his employment at the Jeffersonville facility, Mr. Redden held positions as an associate chemist, senior chemist/plant microbiologist, and wastewater treatment plant supervisor. His duties included daily operations and supervision of personnel, scheduling and performance of maintenance activities, budgeting, ordering, materials balance, sludge management, laboratory analysis, quality assurance and quality control programs, and compliance with various state and federal reporting requirements. Mr. Redden has no experience either in the operation of a drinking water or domestic wastewater treatment plant, or at a DER-permitted industrial wastewater treatment plant.
Recommendation Based on the foregoing, it is hereby: RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of James H. Redden for certification as a Class B wastewater treatment plant operator. DONE and RECOMMENDED this 9th day of April, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 9th day of April, 1992. APPENDIX The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner: The Petitioner did not file a proposed recommended order. Respondent: The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2-4. Rejected, unnecessary. COPIES FURNISHED: Carol Browner, Secretary Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 James H. Redden 1362 Chesapeake, Avenue Naples, Florida 33962 Francine M. Ffolkes, Esq. Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399
The Issue The issue is whether Oliver J. Turzak violated statutes and rules governing the practice of engineering as charged in the Amended Administrative Complaint filed with the Clerk of the Florida Board of Professional Engineers (the “Board”) on October 4, 2012.
Findings Of Fact Petitioner is charged with regulating the practice of engineering pursuant to chapter 455, Florida Statutes. The Administrative Complaint at issue was filed by the Florida Engineers Management Corporation (“FEMC”) on behalf of Petitioner. FEMC is charged with providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers pursuant to section 471.038, Florida Statutes. Respondent is, and at all times material to these proceedings has been, a licensed professional engineer in the State of Florida, having been issued license number PE 18230. Respondent’s last known address is 5405 Water Street, New Port Richey, Florida 34652. On April 20, 2008, Respondent signed, sealed, and dated a Settlement Stabilization Plan for the Fish Residence located at 11251 Knotty Pine Drive, New Port Richey, Florida (“Fish Residence Project”). On June 10, 2008, Respondent signed, sealed, and dated an engineering opinion letter (“Letter”) which was addressed and sent to Champion Foundation Repair, the entity which was Respondent’s client for the Fish Residence Project. The Letter stated in material part: [Respondent], whose signature appears below, has verified placement of twenty-seven (27) exterior piers and twenty-five (25) interior jack pins as located on the drawings by the same job number. The piers all achieved sufficient load bearing characteristics to transfer the house weight to the piers and to close cracks substantially and stabilize the foundation. The remediation program was developed according to geological data supplied by Central Florida Testing Laboratories, Inc., dated November 2007. Similar pier reports on numerous structures with similar problems have demonstrated long term success without additional settlement. Therefore, it is the opinion of the [Respondent] that the location has been repaired and stabilized and, further, that there is no evidence of new sinkhole activity at the location. In compliance with Florida Statute 627.707, the report and remediation program was prepared under the supervision of a Registered Professional, whose field of expertise is a Geo-Technical Engineer. The Board has adopted Responsibility Rules of Professional Engineers (“Responsibility Rules”). These rules are contained in Florida Administrative Code Chapters 61G15-30 through 61G15-35. Professional engineers, who perform services covered by the Responsibility Rules, are required to comply with those rules. Rule 61G15-30.002(1) mandates that Respondent, as the structural engineer of record, is professionally responsible for the documents prepared for the Fish Residence Project. As such, Respondent is responsible for producing a document that complies with the applicable portions of the Responsibility Rules. Respondent acted as Engineer of Record of the Structure for the Fish Residence Project as that term is defined in rules 61G15-31.002(1) and 61G15-31.003(1). As such, all structural documents prepared, signed, sealed, and dated by Respondent must contain the information set out in rule 61G15-31.002(5), as mandated by rule 61G15-31.001, setting out the General Responsibility standards for engineers designing structures. Section 471.033(1)(g), Florida Statutes, provides that an engineer is subject to discipline for engaging in negligence in the practice of engineering. Florida Administrative Code Rule 61G15-19.001(4) provides that negligence constitutes “failure by a professional engineer to utilize due care in performing in an engineering capacity or failing to have due regard for acceptable standards of engineering principles.” Rule 61G15-19.001(4) also provides that: [F]ailure to comply with the procedures set forth in the Responsibility Rules as adopted by the Board of Professional Engineers shall be considered as non-compliance with this section unless the deviation or departures therefrom are justified by the specific circumstances of the project in question and the sound professional judgment of the professional engineer. Respondent’s June 10, 2008, Letter is an engineering “certification” as that term is defined in Florida Administrative Code Rule 61G15-18.011(4): statement signed and sealed by a professional engineer representing that the engineering services addressed therein, as defined in section 471.005(6), F.S., have been performed by the professional engineer, and based upon the professional engineer’s knowledge, information and belief, and in accordance with commonly accepted procedures consistent with applicable standards of practice, . . . . “Certifications” are subject to the standards set out in Florida Administrative Code Rule 61G15-29.001, which require that if an engineer is presented with a “certification” that “involve[s] matters which are beyond the engineer’s scope of services actually provided” that the engineer must “decline to sign . . . such certification.” Section 471.033(1)(a) provides that an engineer is subject to discipline for “[v]iolating . . . [a] rule of the [B]oard.” Section 471.033(1)(e) provides, in material part, that a professional engineer is subject to discipline for “[m]aking or filing a report or record that the licensee knows to be false” when the report is “signed in the capacity of a licensed engineer.” Rule 61G15-19.001(6) provides that: A professional engineer shall not commit misconduct in the practice of engineering. Misconduct in the practice of engineering as set forth in Section 471.033(1)(g), F.S., shall include, but not be limited to: * * * (b) Being untruthful, deceptive, or misleading in any professional report, statement, or testimony whether or not under oath or omitting relevant and pertinent information from such report, statement or testimony when the result of such omission would or reasonably could lead to a fallacious conclusion on the part of the client, employer or the general public; . . . . The Fish Residence In 2007, the residence located at 11251 Knotty Pine Drive in New Port Richey, Florida (the “Fish Residence”), experienced structural damage from subsidence in the ground underlying the home. As a result, a claim was made to Fish’s insurance company, and an investigation was commenced. Central Florida Testing Laboratories, Inc. (“CFTL”), a geotechnical engineering firm, performed an in-depth analysis and found, in a signed, sealed, and dated engineering report issued on November 20, 2007, that the subsidence was likely caused by a number of factors, including sinkhole activity. As a result, the Fishes hired a contractor, Champion Foundation Repair (“Champion”) to remediate the damage. Champion hired Respondent to perform the engineering services necessary to obtain a permit for the remediation, inspect the construction, and complete a report certifying the adequate completion of the work. Respondent had a long history of providing similar services to Champion in the past, having performed engineering services in over 200 projects for Champion. Respondent created, signed, sealed, and dated on April 20, 2008, a Settlement Stabilization Plan (“Plan”), which formed the design basis for the work Champion carried out. Well into the project, the Fishes became dissatisfied with the work done by Champion. Champion was terminated as the contractor before the work was finalized and before Respondent was able to perform a final inspection of the property. Litigation was commenced and Bracken Engineering (“Bracken”), a forensic structural/civil engineering firm was engaged to perform an investigation of the work performed by Champion and Respondent for the pending litigation. Bracken issued a lengthy engineering report (“Bracken Report”), under engineering seal, on June 20, 2011. The Bracken Report found Respondent’s Plan deficient, that Respondent was not adequately knowledgeable about the site, that Champion’s implementation of the Plan, and Champion’s construction work as a whole was flawed and inadequate. Subsequent to the issuance of the Bracken Report, a complaint was filed with the Board, and these proceedings were initiated. Settlement Stabilization Plan for the Fish Residence Roger Jeffery opined that the Plan failed to meet required engineering standards. The parties agree that when a structure, such as the Fish Residence Project, is initially built, the loads are directly transferred to the foundation, which then transfers the loads directly and uniformly as a continuously supported structure to the underlying soil. However, when, as occurred in this case, the structure’s loads are no longer transferred directly and uniformly to the ground through the foundation, but are transferred through pins which underlie the foundation, the foundation itself now acts as a beam or beams and is subject to the stresses applied to the beams. Respondent asserted that the foundation load would remain continuous, and therefore stable, since grouting had been poured under the Fish Residence to consolidate and stabilize the soils. However, Respondent’s plan did not call for grouting to be used. Moreover, according to the Bracken Report, no grouting was ever placed under the Fish Residence, even though it was called for in the CFTL Report to stabilize the structure. Respondent’s failure to perform a final inspection resulted in an inaccurate assumption and opinion. Respondent’s claim that grouting placed in the void under the structure reconstituted the original soil conditions is rejected, especially in light of the fact that Respondent also analyzed the pins and foundation in a beam configuration--a simple span beam. Further, Respondent’s analysis must be discounted because the calculations justifying his conclusion that the structure was adequately supported was performed in December 2013, well after these proceedings commenced and more than five years after the Plan had been created by Respondent. As a result of the changed structural support system (from ground support to pins), the position of the pins is critical to the stability of the structure. If the pins are too far apart for the strength of the foundation’s materials to accommodate the foundation, now acting as a beam or beams, the foundation will be overstressed. Cracking, at a minimum, or collapse, at a maximum, can occur. Cracking or collapse can occur because the concrete slab foundation used at the Fish Residence does not have any existing top reinforcing steel in it. When asked if perhaps reinforcing steel might have been placed within the slab itself, Mr. Jeffery stated he had never seen such use of steel in over 40 years. No evidence to support the steel within the slab theory was presented. When the newly installed pins become the structural support, a negative bending moment is introduced to the top of the foundation, now acting as a beam. The top of the foundation is made only of concrete, which has little ability to resist the induced negative moment. As a result, deflection, racking, and ultimate failure will be the result if the pin placement and the spans created by the placement are inadequately designed. Respondent’s after-the-fact calculations do not address this issue. Using a continuous beam analysis, the preferred method to evaluate the beam/pin assemblage design in structures like the Fish Residence, the spacing of the pins (usually ten feet apart) designed by Respondent coupled with the loads generated by the foundation and the lack of reinforcing steel in the top portion of the foundation would result in stress that would exceed the strength of the concrete and, at a minimum, the concrete would eventually crack. Dr. Ahmed Said, Respondent’s expert, agreed with this conclusion. Even using a simple beam analysis, the design method Respondent testified he used and that Dr. Said agreed was commonly used, movement, resulting in cracks at the foundation slab, would occur. Again, since no reinforcing steel exists at the top of the slab, as a matter of simple physics, the concrete would have to respond to the deflection that would occur at the bottom of the foundation and, concrete being weak, would likely crack or worse at the top. Respondent provided no persuasive rebuttal to Mr. Jeffery’s analysis. First, Respondent claimed that elevations taken at the site in 2013 showed minimal deflective movement, proving the Plan design was sufficient. However, Mr. Jeffery noted that subsequent elevations taken at the completed structure would have little meaning regarding the adequacy of the design since: the design stands alone and is not affected by how the contractor implemented it; and no one could know whether the design, as constructed, would withstand the required stresses until it was subjected to full design loading, which would have to include the full wind loads to which the structure was designed. There is no evidence the structure was ever subjected to such stress in the period between its construction in 2008 and the later recorded elevations. Next, Respondent claimed the 3-foot “spreaders” attached to the pins would reduce the span of the foundation acting as a beam and thus would overcome the lack of reinforcing steel in the top of the foundation and the resulting overstress. The problem with this assertion is that the Plan does not call for “spreaders” to be placed in the design by any notations that are readily and universally cognizable. Respondent admitted that the symbol regarding the use of the spreaders was agreed to only between Champion and him, and was not included in the Plan. However, even if the notations used by Respondent could be interpreted as calling for the use of the “spreaders,” the “spreaders” would not materially impact the fact that the foundation, acting as a beam, would be overstressed, since a negative moment would still exist due to the lack of reinforcing steel at the top of the foundation. Finally, Respondent asserted that Mr. Jeffery’s analysis was flawed since Mr. Jeffery had assumed the Fish Residence was a masonry structure whereas Respondent claimed the structure was a wood frame covered with a stucco exterior. This issue is confused by the fact that both the CFTL and Bracken Reports, upon which Mr. Jeffery relied, both stated the Fish Residence was a masonry structure, although the CFTL Report notes the structure was initially constructed as wood frame. In any event, Mr. Jeffery testified that regardless of the masonry versus wood frame question, the structure would still be overstressed. Changing the construction from masonry to wood frame/stucco veneer might lessen the overstress, but not materially. In addition to the overstress created by failing to address the induced negative moment at the top of the foundation, Respondent’s design also resulted in a shear load which exceeded the maximum allowable under the American Concrete Institute 318 Concrete Code; and, since that code is incorporated into the Florida Building Code (“FBC”), the requirements of the FBC as well. The shear load factor is especially relevant since Respondent did not assure that the pins would not be placed under windows and doors where this issue is critical. Respondent did not address the shear issue as it applied to windows and doors in his after-the-fact calculations. The Plan is also deficient since it did not indicate the placement of windows and doors in the Fish Residence Project. By not doing so, the pins, when put in the ground, could be placed underneath these internal spaces which do not then form a continuous roof/wall/foundation assembly. If that occurred, and it apparently did in the Fish Residence on four occasions, the shear problem described above is exacerbated, since at either side of a door or window a point load is created and the shear stress increased. The Plan also fails to include required information. While the Plan calls for the use of a “FastSteel” product, the Plan does not include any product specification number or the strength of the material to be used. Although Respondent stated that the contractor, based upon its experience, knew what was intended, ultimately Respondent admitted that the required information was not in the Plan. Similarly, the Plan did not include the design loads and criteria used in the design and provided no building codes and standards. Respondent admitted the Plan lacked this required information. The missing information is important. Only by including such information on design documents can the engineer adequately communicate to the reviewing building code plans examiner or a contractor what the design engineer intended. By not including this required information, the reviewer can be uncertain as to whether the engineer used the correct loadings or designed the structure in accordance with the correct edition of the building code. Similarly, failing to provide sufficient information concerning the products to be used may lead a contractor to utilize the wrong product during construction. The Plan was submitted to Pasco County for issuance of a permit. The county building department issued a permit for the work to be performed. Mike Mosher of Champion believed the Plan included all the specifications he needed to identify the components to be used and the manner in which the work was to be performed. He also testified the work was completed consistent with the Plan. The June 10, 2008, Certification Letter Respondent issued the June 10, 2008 Certification Letter (“Letter”) under seal to his client before he completed the inspections necessary for the conclusions in the Letter to accurately reflect the opinions contained in it. Both Respondent and his client, Champion, agree that since the client had been denied access to the Fish Residence Project, no final inspection of the site by Respondent ever occurred. As a result, Respondent admitted that, when he signed, sealed, and issued the Letter, the engineering services, upon which the certification in the Letter was based, had not yet occurred. The evidence proved that Respondent’s last appearance at the Fish Residence Project occurred on or about May 5, 2008, and that most of the work done at the site occurred after that date with the final construction finishing on or about May 30, 2008. As a result, the conclusions and opinions contained in the Letter were not based upon accurate and contemporaneous engineering analysis. Since the Letter purports to be grounded in engineering inspections, the statements in the Letter were not fully based upon the services Respondent actually provided. While not entirely clear from the evidence and testimony, had Respondent had the ability to perform a final inspection, he would have had the opportunity to discover several deficiencies in the construction. The Bracken Report detailed several deficiencies and non-conformances with the Remediation Plan. These deficiencies included: 1) failure to drive 5/6ths of the pilings to the depth prescribed by the notes to the Plan; a large number of pins found beneath door and window openings; mis-installation of pins and pin assemblages; and 4) no grouting placed in the ground although Respondent intended that grouting be used. Respondent agreed that at least some of the Bracken Report conclusions were warranted. Respondent asserts that, although the Letter was issued prematurely, Respondent should not be held accountable since the Letter “never went public.” This contention is rejected. The Letter was a final engineering report/certification and, upon issuance to Respondent’s client, Champion, was fully subject to all engineering standards, rules, and statutes. Since the Letter contained conclusions that were inaccurate and based upon information that was not collected under Respondent’s direct supervision, issuance of the Letter constituted negligence and misconduct in the practice of engineering. Respondent’s Prior History of Discipline Respondent has previously had discipline imposed. The instant case is the first in more than 40 years of Respondent practicing engineering that involved a subsidence remediation plan. Respondent’s first prior discipline was in FEMC Case No. 00-0086. In that case, Respondent was hired to correct building code issues identified by a county building department. The drawings he made violated the building code requirements, contained deficiencies, and were not in compliance with the standard practice of engineering. Respondent proceeded to hearing without benefit of legal counsel. A final order was entered by the Board reprimanding his license, fining him $1,000, plus costs of $302.93, placing him on probation for one year, and requiring he complete a course in professionalism and ethics while on probation. Respondent’s second prior discipline was in FEMC Case No. 01-0079. That matter was based upon drawings that were dated February 16, 2001. Respondent was not represented by counsel in that proceeding. In that proceeding, no proof was presented that the structure depicted in the plans by Respondent was ever built. Therefore, no direct risk of harm to the public was proven. Respondent entered into a Settlement Stipulation in that matter which was approved by the Board of Professional Engineers. He agreed to pay a total administrative fine of $7,000, plus $316.67 in costs and receive a reprimand on his license. He also received a one-year suspension of his license, followed by two years’ probation, and continuing education requirements. The other instance of discipline imposed against Respondent was in FEMC Case No. 2004037005. That complaint arose from plans that were signed by Respondent in June 2004. He was charged with signing plans he had not personally prepared or were not prepared under his supervision. Respondent entered into a Settlement Stipulation in that case that was approved by the Board. He paid a $5,000 administrative fine and costs of $750; received a reprimand on his license; received two years of probation; and was required to make detailed reporting to the FEMC during the probationary period. No additional evidence of prior disciplinary matters was offered other than the three cases described above.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent Oliver Turzak’s Professional Engineer license be reprimanded, and that the license shall be suspended for a period of one year. Upon termination of the suspension, Respondent shall be reinstated under terms and conditions of reinstatement as the Board determines are appropriate, including two years of probation with terms the Board deems appropriate. Respondent shall also be fined $1,000 per count ($2,000 total fine). Finally, Petitioner shall be entitled to assess costs which are related to the investigation and prosecution of this case, other than costs or fees associated with an attorney’s time, as provided in section 455.227(3), Florida Statutes. DONE AND ENTERED this 6th day of May, 2014, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 6th day of May, 2014. COPIES FURNISHED: Zana Raybon, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303 Michael Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 David P. Rankin, Esquire Law Office of David P. Rankin, P.A. 18540 North Dale Mabry Highway Lutz, Florida 33548 John Jefferson Rimes, III, Esquire Florida Engineers Management Corporation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303
The Issue This case concerns a dispute between the Petitioner and Respondent on the question of whether a certain underground utility operated by the Petitioner, namely a sanitary sewer force main, unreasonably interfered with the construction of an additional lane on the west side of Pasadena Avenue, between Huffman Way and Matthews Road in the City of South Pasadena, Florida. See Section 338.19, Florida Statutes. If it is found that the utility unreasonably interfered with the road construction, then a decision must be reached on the propriety of the $21,604.45 charge which the Respondent has placed against the Petitioner for the removal of the underground utility at the instigation of the Respondent. See Section 338.20, Florida Statutes.
Findings Of Fact The Petitioner in this action, City of South Pasadena, is a municipal corporation located in Pinellas County, Florida. The Respondent, State of Florida, Department of Transportation, is a governmental department within the State of Florida, which has, among other functions, the construction and maintenance of roadways within the State. This dispute arises between the parties based upon the Department of Transportation's decision to construct an additional lane on the west side of Pasadena Avenue, between Huffman Way and Matthews Road in the City of South Pasadena, Florida, and the associated removal of an underground utility which was owned and operated by the City of South Pasadena. The underground utility was a sanitary sewer force main. In the absence of the removal of this utility by efforts of the Petitioner, the Respondent had those utilities removed at a cost of $21,604.45, of which $14,666.95 was acknowledged by the City as representing a reasonable cost of removing the utilities in question, should removal be found to be necessary. The remaining $6,937.50 is contested by the City as being an unreasonable cost of removal, even if it is determined that it was necessary to remove the utilities in the first instance. The facts reveal that as early as 1975, the Department of Transportation was desirous of knowing of the existence and whereabouts of underground utilities in the City of South Pasadena along Pasadena Avenue from Corey Causeway to the south to Park Street in the north. Petitioner's Exhibit No. 26, dated October 18, 1975, is a letter from the district utility engineer of the Respondent addressed to an official in the City of South Pasadena indicating possible improvements from Corey Causeway to Park Street along Pasadena Avenue and requesting information about the possible necessity to relocate or adjust utilities in the area of the proposed highway construction. Again, on July 1, 1977, in anticipation of the improvements to Pasadena Avenue in the aforementioned area, subject to funding, the Respondent requested the City to identify its utilities which might require relocation or readjustment in view of possible highway construction. A copy of correspondence addressed from the district utility engineer of the Respondent to a City official which deals with this subject matter may be found as Respondent's Exhibit No. 3, admitted into evidence. The private consulting engineers and architects employed by the City responded to this request by correspondence of August 22, 1977, a copy of which may be found as Respondent's Exhibit No. 2, admitted into evidence, and it had attached certain drawings indicating the location of utilities; however, those drawings did not depict the subject sanitary sewer force main between Huffman Way and Matthews Road. The drawings may be found as Respondent's Exhibit No. 1, admitted into evidence. The sanitary sewer force main had been placed there sometime in the period of the years 1971 and 1972, and was to be found anywhere from ten (10) inches to three (3) feet underground. Both the Petitioner's Exhibit No. 18 and the Respondent's Exhibit No. 4 demonstrate that the sewer force main was within the "right-of-way" granted to the State of Florida, Department of Transportation. The two exhibits spoken to are site plans depicting the "right- of-way" limits. Although the parties entered into a relocation agreement for utilities along Pasadena Avenue above the disputed area (see Petitioner's Exhibit No. 17, admitted into evidence), they did not have an agreement to relocate the utility in dispute. By September 5, 1978, the Respondent had decided to undertake project No. 15590-3609 which was to construct a third lane from Huffman Way to Matthews Road along Pasadena Avenue, as a traffic aid. This is evidenced by Petitioner's Exhibit No. 14, correspondence carrying the date September 5, 1980, from the resident engineer of the Department of Transportation to the district design engineer in the Department. Final plans on the overall Pasadena Avenue work referred to the construction of the third lane premised upon available construction funds, as shown in Petitioner's Exhibit No. 19, admitted into evidence. On October 24, 1978, Pinellas County, Florida, in the person of the Board of County Commissioners, by resolution, authorized the utilization of secondary gas tax funds to extend the Pasadena Avenue project to accomplish the lane construction. A copy of this resolution may be found as Petitioner's Exhibit No. 15 admitted into evidence. This item's expansion of the lane was advertised for bid on March 28, 1979, and on September 15, 1980, construction was commenced. As stated before, at the time the construction began, there was no written agreement between the parties to remove the sanitary sewer force main and indeed the Department of Transportation was without knowledge of the existence of that utility, although employees of the Department of Transportation and their private contractor for the project had encountered a "valve box" associated with the sanitary sewer system prior to the commencement of construction and had concluded that the possibility existed that the "valve box" apparatus might be removed without hindering the road construction. There is some dispute between the parties on the question of the point in time at which the officials within the City of South Pasadena learned of the installation of the third lane. The Department of Transportation claims that a preconstruction conference dealing with the overall work to be done on Pasadena Avenue made mention of the disputed item as early as May 8, 1979, and that officials for the City were in attendance. Again at a meeting in March, 1980, the Department urges that the project at issue was discussed. The officials for the City dispute this, and after considering the testimony of both parties, it can not be concluded that the City specifically knew of the construction in March of 1980. Nonetheless, in late September, 1980, the City clearly became aware of the project and the Department of Transportation learned of the unpermitted sanitary sewer force main within the "right-of-way" between Huffman Way and Matthews Road in the third lane expansion of Pasadena Avenue. Sometime around September 23, 1980, the construction company's underdrain crew came in contact with the sanitary sewer line, and the line was found to be an interference with the road construction. At that point, the contractor removed the work crews and did not return until November 7, 1980, at a time when they worked through November 17, 1980, achieving job items that did not conflict with the sanitary sewer line. This work could have been achieved at anytime after September 23, 1980. The Department of Transportation gave the contractor the premission to remove the underground utility line on December 5, 1980, and in between December 10, 1980, and December 17, 1980, the utility line was removed. On December 22, 1980, the contractor resumed the construction of the roadway known as the south bound extension between Huffman Way and Matthews Road. Around September 25, 1980, the City of South Pasadena was made aware of the conflict between the road construction and the sewer main, and the fact that the road construction could not be completed without the removal of that line. Having discovered the conflict between the main and the road construction and the fact of the road construction between Huffman Way and Matthews Road, the City Council held a meeting on September 29, 1980, at which time discussion was held on the removal of the subject sanitary sewer force main and the cost to be incurred by the City. An excerpt of the minutes of that meeting may be found as Petitioner's Exhibit No. 3, admitted into evidence, a copy. On September 30, 1980, the Mayor of the City of South Pasadena, by correspondence, a copy of which may be found as Petitioner's Exhibit No. 1, admitted into evidence, transmitted copies of resolutions Nos. 174 and 175 of the City of South Pasadena, copies of which may be found as Petitioner's Exhibits Nos. 4 and 5, respectively, and through these resolutions voiced the opposition of the City of South Pasadena to the road widening. On October 1, 1980, the consulting engineer for the City of South Pasadena wrote to the Department of Transportation indicating his opinion that the extension under construction was "an unnecessary extension of the present project." A copy of that correspondence may be found as Petitioner's Exhibit No. 2, admitted into evidence. There followed correspondence from the Deputy District Engineer for operations of the Department of Transportation by a letter dated October 10, 1980, addressed to the Mayor of the City of South Pasadena. That correspondence acknowledges the receipt of Resolutions Nos. 174 and 175, and states the Department of Transportation's intention to proceed with the construction. A meeting was held between the City and the Department of Transportation on October 14, 1980, at which meeting the City indicated that they did not intend to pay the cost of relocating the sewer force main. On October 22, 1980, the Deputy District Engineer for the Department of Transportation, by correspondence with attachments, a copy of which may be found as Petitioner's Exhibit No. 10, admitted into evidence, wrote to the Mayor of the City and referred to the attached Sections 338.17 through 338.20, Florida Statutes, on the subject of the responsibility of the utility owner to relocated or adjust utilities that conflict with road improvements within a public "right- of-way." That correspondence asked that the City adjust, at the earliest date possible, the utilities in conflict to allow the conclusion of the construction. The correspondence closed by indicating the availability of officials within the Department of Transportation to meet with City officials to clarify the adjustments to be made. On October 31, 1980, the Petitioner was informed by registered letter that it was directed to remove, relocate or adjust the subject utility and granted twenty (20) days to request a hearing on the question of that disposition of the utility, and by doing so alluding to the opportunity for hearing before the Division of Administrative Hearings. Finally, the correspondence noted that failure to request a hearing would promote action by the Department of transportation. By correspondence dated October 31, 1980, a copy of which is admitted as Petitioner's Exhibit No. 9, the Mayor of the City of South Pasadena wrote the Department of Transportation and stated that the City of South Pasadena would not take any action to remove the force main, for reason that there was no budgetary provision for that expense in the City's 1980-81 budget. This lead to the removal of the underground utilities by the contractor employed by the Department of Transportation to construct the road improvements. The underground utility was an unreasonable interference found in the "right-of-way" at the location where the additional lane was being constructed between Huffman Way and Matthews Road on Pasadena Avenue and the necessity to remove it was not discovered until the project was underway, and in that respect, its removal was coincidental and not incidental to the construction. It having been determined that it was necessary to remove the utility, there remains in contest the $6,937.50 charge for removal. These removal charges are reflected in Petitioner's Exhibit No. 7, a copy of the statement of charges drawn by the contractor and forwarded to the Department of Transportation. On the second page of that document, which was admitted into evidence, are found Items 2, 3 and 4. Item 2 is a charge in the amount of $4,000.00 entered by the contractor due to the necessity to stop the paving operation when they encountered the sanitary line, and to remove the asphalt crew and, in turn, bring the asphalt crew back to conclude the work. Item 3, constitutes a charge of $937.50 for the rental of barricades from September 23, 1990, to November 6, 1980, and from November 17, 1980, to December 18, 1980. Item 4 speaks of setback charges caused by "long delay and waiting for the City of S. Pasadena and the DOT to resolve the force main matter-2 months field office expense and job overhead $1,000.00" and indicates cost of $2,000.00. Other than this summary explanation of the charge found in the document, no other indication was given as to the meaning of Item No. 4 and consequently, its true meaning is not understood.
Recommendation Based upon a full consideration of the Findings of Fact and Conclusions of Law reached herein and in keeping with the terms and conditions of Sections 338.19 and 338.20, Florida Statutes, it is RECOMMENDED: That the charges as set out in the Conclusions of Law section of this Recommended Order, which have been allowed, be upheld as an assessment against the City of South Pasadena, Florida, occasioned by the necessity to remove a sanitary sewer force main along Pasadena Avenue between Huffman Way and Matthews Road. 3/ DONE and ENTERED this 31st of March, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 31st day of March, 1981.
The Issue Whether the Respondent's license as a professional engineer should be suspended, revoked or otherwise disciplined based upon the allegations set forth in the Third Amended Administrative Complaint.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of professional engineering in Florida. During the applicable time period set forth in the Third Amended Administrative Complaint, Respondent, Charles A. Wunder, Sr., was licensed as a professional engineer in Florida. He holds license number PE0016670, which has been in effect continuously since 1971. Respondent Wunder's last known address on file with the Board of Professional Engineers is 12620 Eagle Road, Cape Coral, Florida 33909. Plaza 1300 In 1981, the Respondent was commissioned by Messrs. Mike Zak and John Zipkovich to prepare plans for the construction of a commercial building to be developed in Cape Coral, Florida, known as Plaza 1300. At the time the commission took place, the owner-developers represented to Respondent that the construction company with whom he was involved would build the project, and he would supervise construction as a professional engineer. Based upon this representation, the Respondent designed and prepared plans in a way that was less time consuming than the creation of a plan to be used without his continuous supervision and direct involvement in construction. Instead of placing all of the specifications on the drawings, the Respondent chose to incorporate many of the details in the plan through the use of separate specification booklets which would be used by the fabricators and the Respondent during construction. The Respondent judged that this was a reasonable approach to the project design based upon the information he was given by the owner- developers during the design phase. The original plans for the building were completed in January of 1982. Four copies of the drawings, as completed by the Respondent for this project, were sealed with Respondent Wunder's professional seal as an engineer and were given to his clients during that same month and year. These drawings were specific enough to allow Messrs. Zak and Zipkovich to decide whether this was the building they wanted built at the project site. The Respondent did not give the owners the technical specifications that had been placed in the separate booklets because this aspect of the design was beyond what they were seeking to review at the time the project design was presented to them. After the Respondent discussed with the owner-developers what it would cost to build the project, they decided to find another builder who would construct the project for less money. The owner-developers used the sealed drawings when they went looking for a cheaper builder. They did not advise the Respondent of their decision not to retain the construction firm with whom he was affiliated, and they did not reveal they were going to use the drawings for the purpose of retaining a contractor. The owners gave the drawings to David J. Hayes, the general contractor and qualifier for Coral Bay Construction, Inc. This construction company was hired by the owners to build Plaza 1300 pursuant to the sealed drawings created by Respondent Wunder. Once the Respondent was advised that his construction company would not build the building, there must have been some discussions and agreements made with the owner-developers as to how Respondent Wunder would remain on the project for engineering purposes. It is obvious from the evidence adduced at hearing that the Respondent remained actively involved in the project in a number of ways after he completed his design and sealed the drawings. The Respondent's role and involvement in this project is confusing to others who are attempting to delineate what the Respondent's responsibilities were at different stages of the project's development. Sometimes the Respondent performed engineering functions for the owner-developers such as the approval of shop drawings. At other times, he assisted the contractor in working out code disputes with various city agencies and defended or revised his design. The Respondent also completed the structural inspection for the city on this building, and made any necessary design changes the city deemed were necessary to allow the issuance of a certificate of occupancy. By some means, all of the parties managed to delineate responsibilities throughout the project without any conflicts as to who was ultimately responsible for what in any given stage of development. The Respondent was only called upon when he was needed, and he assisted any of the parties when he was asked to do so. The signed and sealed drawings received by the contractor were submitted by him to the building department as the complete set of plans and specifications. Building department personnel relied on the drawings as the complete building plans. However, other city personnel who had questions concerning the specifications contacted the designer, Respondent Wunder. Any questions were resolved to the satisfaction of the city personnel prior to permit approval. For example, when the Fire Marshall had questions concerning whether construction would comply with the Standard Fire Prevention Code, National Fire Codes (NFPA) and the Life Safety Code 101, he discussed the matter with the Respondent. The Fire Marshall was given the Respondent's specification booklet that contained more information on the building materials than what was contained on the plans. Based upon the review of these specifications in addition to the drawings, the project was approved for permit by the Fire Marshall as long as the special conditions listed by him on a separate sheet were met. A permit was issued to construct the building according to the drawings and the additional specifications reviewed by city personnel on May 5, 1982. The contractor was never advised during his ongoing interactions with Respondent Wunder, the owner-developers or city personnel that separate sets of specifications existed which were part of the designer's plans for the project. The contractor relied on the construction drawings, the Respondent's approval of shop drawings prepared by manufacturer's before the structural items were fabricated for placement in the building, the outcome of his own discussions with city personnel about the application and interpretation of various codes as well as Respondent's discussions, and Respondent's structural inspections of the project. Based upon the knowledge and materials obtained by this contractor throughout the project, he was able to construct the building and obtain a certificate of occupancy for the owner-developers. The separate sets of specifications were not provided by the Respondent or the city through its records at hearing because these items were lost, destroyed or stolen from the city and the Respondent years prior to the filing of the charges by the Department. The deficiency in the records was not the fault of the city or the Respondent. Wherever deficiencies alleged by the Department as to design could be resolved in separate specifications, it has been determined that the Respondent did in fact supply this information in additional specification booklets as part of the plan for Plaza 1300. On Sheet S1 of the signed and sealed drawings, the Footing Schedule fails to call for anchor bolts at the base of steel columns in Footings (1,2,4) CB and 7 B-C. Ordinarily, this omission is contrary to the exercise of due care and fails to exhibit due regard for the principles of professional engineering because anchor bolts are required for the columns to function. It is careless to assume a contractor will use the right number and size anchor bolts. In this case, however, the Respondent created a separate specification, approved the shop drawings before the columns and the anchor bolts were delivered for use by the contractor, and inspected the installation of these materials. Any omission of the anchor bolts from the Footing Schedule in the drawings was resolved well before installation of the columns. The Footing Schedule on Sheet S1 calls for dowels at 10 feet on centers in footings supporting masonry walls, but this is inconsistent with the dowel requirements indicated on Sheet S2. This sheet shows the dowels are placed at varying spaces, e.g., some are spaced 46 feet apart, some are 6 feet, 8 feet, 10 feet and 40 feet on centers. Drawings should be consistent as to the information they convey to the contractor. This error could not have been corrected in a separate set of specifications. It resulted in a handwritten entry on the drawings prior to approval by the building department that gave a third alternative as to how the dowels should be placed. The lack of clarity as to dowel placement and the creation of three possible installations was a failure by a professional engineer to use due care in design while performing in an engineering capacity. As this disciplinary proceeding relates only to the design portion of this project, it is unknown if Respondent Wunder was actively involved in the revision accepted by the building department or whether he approved later shop drawings based upon the handwritten entry on the drawings submitted to the building department for approval. The Recommended Bar Details on Sheet S1 of the drawings are ambiguous as they do not specify what portion of the required bottom bars may be stopped short of the supports. The details indicate that some bottom bars are cut off and do not extend into supports, but the number is not specified. An engineer's design must explain which bottom bars extend the full length of the span because the designer is the only one who knows this and he must tell the detailer what he wants. The details cannot be allocated to a fabricator for subsequent approval by the engineer because the bars not needed for moment must be developed in bond beyond the cut off point, according to code requirements. A fabricator would not have the expertise to read the moment diagram and design what the professional engineer's calculations require without specific instructions regarding the bottom bars. Separate specifications would not cure the problem with the ambiguities in the bottom bars because the ambiguities are in the pictures themselves. If the ambiguities could not be clarified in the pictures, they could not logically be clarified with the written word. On Sheet S1, the requirements for top steel reinforcing bars in continuous concrete beams are ambiguous in that the required number and extent of those bars over supports between adjacent beams has not been defined in the drawings. The top bars are detailed in each separate beam with no regard as to how many bars are required between adjacent beams. For example, beams B-1, B-2 and B-3 are adjacent to each other on the second floor, the third floor and the roof. The top reinforcing for beam B-2 does not agree with that of beams B-1 and B-3. If the engineer had a particular area of steel required for this condition, then he has confused the contractor with this detail in the drawings. In this example, the amount of reinforcing varies on the roof beams by 33 percent. The amount of reinforcement should be the same for each bar. The reason this ambiguity could not be resolved in specifications or shop drawings is that the ambiguity is inherent in the design, as represented in its pictorial form. The alleged ambiguities as to Sheet S2 regarding anchor bolts and base plates were resolved in Respondent's favor in a separate specification booklet, and the shop drawings reviewed and accepted by Respondent. His details regarding the stairs were contained in the architectural portion of the drawings in the plans as opposed to the structural drawings. Based upon his design, and his review and approval of the shop drawings presented at hearing, the alleged ambiguities did not exist. The CORRUFORM deck indicated on architectural Sheet A6 is structurally inadequate to safely support code specified loads at the indicated joist spacing. The manufacturer's recommendation, based on an allowable stress of 30,000 PSI on the span of 5 feet is 34 PSF, is a little over one half of the actual load on the deck. The actual load is almost twice what the manufacturer recommends. A separate set of specifications could not correct this deficiency because the properties specified indicate the deck is structurally inadequate to support the required loads set forth on Sheet S1 of the drawings. In Sheet S5 of the drawings, all steel joists specified, except for those marked 8H3, are structurally inadequate to safely support code specified loads, according to the engineering calculations presented at hearing. This deficiency is repeated in the shop drawings. This structural inadequacy fails to exhibit due regard for acceptable standards of engineering principles. The 12 WF27 steel beams shown on Sheet S5 lack the moment resisting capacity needed to safely support code specified loads on the roof. The moment resistance required for the roof beam is 81.89 foot kips. The allowable moment capacity for these beams is 68.4 foot kips. This is an inadequate carrying capacity which could not be cured with additional specifications because it is a design error. The roof was redesigned by the Respondent prior to the roof construction. The beam details provided in Sheet S6 are ambiguous in that they fail to define the number and extent of top reinforcing bars required over intermediate supports in continuous concrete members. It appears from the beam schedule that although B-1 joins to B-2 and B-2 joins to B-3, each beam calls for a different number and size of reinforced bars at the connections. This causes confusion as to whether there should be 3, 4 or 7 reinforcing bars intersecting with each other where the beams are supposed to join. Shop drawings and separate specifications would not cure this deficiency as the ambiguity is in the details of the design. In addition to the structural design deficiencies alleged by the Department, Count I of the Third Amended Administrative Complaint alleges that various provisions of the applicable building codes in effect in the City of Cape Coral at the time the plans were sealed were violated in the design created by the Respondent. The Cape Coral Enforcement Board has already determined that there were two rated separate stairways provided to exit the second and third floors of this building, and that the designed stairways met the applicable provisions of the Standard Building Code, as interpreted, applied, and enforced within the City of Cape Coral. The Board also determined that the travel distance to exits and the corridors met the fire, building, zoning, and related technical codes, as they were interpreted and enforced in this municipality. The fire ratings for the elevator glass were in a separate specification book that Respondent Wunder submitted to the Fire Marshall prior to the Fire Marshall's determination that the sealed plans would be approved if the special conditions listed by the Fire Marshall on the drawings were met. These special conditions are missing and cannot be located. It is unknown if these special conditions related to the elevator glass or if the missing specifications were sufficient. The Respondent is found to have complied with the city's code requirements as to the elevator glass in the missing specification. The Cape Coral Enforcement Board found the doors and walls of the exit pathway to be fire rated and in compliance with all fire, building, and related technical codes as interpreted and in force within this municipality. The building materials used were in a separate specification booklet and were used to purchase the materials prior to installation by the contractor. The stairs designed by Respondent Wunder for this building decrease in width in the direction of exit travel. Both the Standard Building Code and the Life Safety Code in effect at the time of the design prohibit a decrease in the width of stairs in the direction of exit travel. The stair landings were found to be in compliance by the Cape Coral Enforcement Board as the applicable codes were interpreted and enforced within the municipality. Winding stairs, although prohibited as an exit stairway by the Standard Building Code, were designed by Respondent Wunder for use as an exit stairway in this commercial building. The riser and tread design completed by Respondent Wunder did not comply with the Life Safety code adopted by the City of Cape Coral. The design error may have been one of the special conditions placed upon the design by the Fire Marshall prior to his approval of the plans for permit. Uniform risers were placed in the building when it was constructed. In the Third Amended Administrative Complaint, the Department alleged that wood trim in exit stairways is prohibited. The Respondent stated in his answer that he was without knowledge of this prohibition. Because the Standard Building Code does allow wood trim if that wood trim meets certain flame spread characteristics and complies with the interior finish requirements, this allegation in the charging document did not sufficiently alert the Respondent as to what he was required to defend against concerning the wood trim. In addition, the Respondent is found to have satisfied code requirements for any wood trim in a separate specification booklet. A manual fire alarm system was not provided by Respondent Wunder as part of his original design. A manual alarm system was made part of the revised drawings on October 31, 1982, which was well after the permit was issued by the municipality. It is unknown if the omission of the manual fire alarm system in the design drawings was an omission, a matter of code interpretation, or whether the system was originally in the separate specification booklet reviewed by the Fire Marshall prior to his approval of the construction plans. This alleged deficiency is resolved in the Respondent's favor upon the determination that the system was in the separate specifications taken from the fire department. The Department's allegations regarding a standpipe system were removed from consideration prior to the taking of evidence in the formal hearing. The Cape Coral Enforcement Board determined that the vertical openings in the floor and roof of this building and the structural system are adequately fire protected under the city's interpretation of fire, building, and other technical codes in force in the city. The handicap accessibility requirements were not met in the drawings completed by Respondent Wunder. During the design phase of the project, the Accessibility by Handicapped Persons Act was in effect in Florida. Even if the restrooms and water fountains in the facility meet the minimum requirements set forth in Section 553.48(2)(h), Florida Statutes, as a result of the separate specifications, the parking space configurations and building access do not meet all of the applicable minimum code requirements. Schooner Cove In 1984, Respondent Wunder had an ongoing business relationship with the architectural firm of Stout & Gerald in Cape Coral, Florida. The architectural firm would hire Respondent Wunder to review the site drainage on the firm's project designs for buildings located on land within the City of Cape Coral. The following procedure was used by the architectural firm when it retained the Respondent in a couple of hundred projects: One of the architects would telephone the Respondent and ask him for a price on a particular number of units and would advise Respondent of the number of lots involved. The Respondent would be told whether the lots were inland or on a canal. Upon receiving this information, the Respondent would give the firm a price quote. When the project progressed to the point where a drainage review was needed, the drawings would be sent to the Respondent. He would either review, review and do some work on them, or say the drainage was all right. The architects would rely upon this review and go forward with finishing the design from that stage to its completion. When the customer needed signed sealed drawings for a building permit, the architect assigned to a particular project would place his seal on the project for the other work. The Respondent would place his seal on the plans as to the site drainage. On October 22, 1984, Respondent Wunder signed and sealed the site plan for a twelve unit condominium project known as Schooner Cove in Cape Coral, Florida. His title block on the site plan indicated "DRAINAGE ONLY" beneath the name "C.A. Wunder Engineering, Inc." The Respondent did not require a survey or a soil test of the site prior to his drainage review of the site plans because of his working professional knowledge of the soil conditions and the undeveloped lots within the City of Cape Coral at the time the site plans were given to him for review. This judgment call was reasonable based upon the architect's site plan and his failure to call anything unusual to Respondent's attention in the preliminary drainage design prepared by the architect. The Respondent did view the site before sealing the drainage design. A drainage design is comprised of calculations, grading and retention. The drainage design for Schooner Cove relied upon the percolation method to dispose of excess water from ten year critical storm events because there is no overflow/outfall capability from the retention areas that collected the excess water. Calculations are part of a drainage design. They should be performed with relation to a site and the drainage layout shown on the site plans. In determining the appropriate calculations, the engineer who places his seal on a site plan as to drainage must establish grades, overflow and how the drainage will be handled on the project. Both pre-construction and post-development conditions at the site must be reviewed. The drainage design at the Schooner Cove project that received the Respondent's engineering seal was not adequate to provide for reasonably anticipated storm water runoff at the site, post-construction, in a ten year critical storm event. The flooding of the retention ponds in such a storm event should have been apparent to a professional engineer who reviewed the plans with due care and due regard for the principles of professional engineering. Mitigating Circumstances The Department did not present any evidence of a previous disciplinary history in this or any other jurisdiction wherein the Respondent has practiced engineering. Many of the deficiencies alleged in the drawings for Plaza 1300 which were created in 1982, have since been reformed by the Respondent within his engineering firm. He no longer prepares separate specification booklets for projects of this size, and he prepares more detailed drawings that do not rely upon his personal supervision and direction after the design phase of the project. These steps were taken by Respondent even before the violations were charged against him in these proceedings. The way in which the drawings were prepared in Plaza 1300 was an unusual practice for Respondent, and was done in reliance upon the owner- developers' representation that Respondent would be responsible for the supervision of the construction of the building as a professional engineer. Some of the deficiencies in the Plaza 1300 project proved by the Department were minor, and were corrected as the project was built. The drainage design deficiencies in the Schooner Cove project can be corrected with a redesign of the drainage system at the site. Aggravating Circumstances Some of the structural design deficiencies in the Plaza 1300 project drawings reveal that the building's deck, columns and beams may not safely support code specified loads if they were built according to the design in the drawings. The owners of the condominiums in the Schooner Cove project must have the drainage redesigned to alleviate the flooding problems at the site. The fact that the complaint alleges multiple counts of the same provision of Chapter 471 cannot be used for enhancement in this case because that provision of the rules regarding disciplinary guidelines was not in effect when either of the violations occurred. The Department did not prove that enhancement of penalties based upon multiple violations was a policy of the Board of Professional Engineers during the time the violations occurred.
Recommendation In determining what penalty should be recommended for Respondent Wunder, the Hearing Officer considered the severity of the offenses, as well as the degree of harm to the consumers and the public. Based upon the foregoing, including all of the information made available to the Hearing Officer regarding aggravating and mitigating circumstances, it is recommended: The Respondent Wunder be found guilty of having violated Section 471.033(1)(g), Florida Statutes, as alleged in Count I , Paragraph Nine of the Third Amended Administrative Complaint. The Respondent Wunder be found guilty of having violated Section 471.033(1)(g), Florida Statutes, as alleged in Count II, Paragraph 15 of the Third Amended Administrative Complaint. Respondent be fined $1,000.00 for each violation for a total of $2,000.00, and receive a letter of reprimand from the Board. The Respondent's license should also be placed on probationary status for a period of three years. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of May, 1991. VERONICA E. DONNELLY 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 29th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5149 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Rejected, plans completed in 1981. Contrary to date on the drawings. See HO #4. Rejected, these were complete drawings. See HO #3. The rest of paragraph 4 is accepted. See HO #4. Accepted. Accepted. See HO #6 and #9. Accepted. See HO #9. Accepted. See HO #6. Accepted. Accepted. Accepted. See HO #9. Accepted. See HO #10. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #24. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Speculative. Accepted. Accepted. See HO #11. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO #3, #4, #7 and #8. Rejected. Contrary to fact. See HO #3. Accepted. See HO #8. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See Chapter 166, Florida Statutes, Section 6, Art. VIII, Florida Constitution. Accepted. Rejected. Contrary to fact. See HO #9. Accepted. Accepted. Rejected. Speculative Accepted. Accepted. See HO #14 and #15. Accepted. Rejected. See HO #3. Rejected. Overbroad. Addressed individually in findings. Accepted. See HO #13. Accepted. See HO #13. Rejected. Contrary to fact. See HO #13. Accepted. See HO #14. Accepted. Accepted. See HO #15. Accepted. Accepted. See HO #17. Accepted. Accepted. Accepted. Accepted. See HO #17. Accepted. See HO #18. Accepted. Accepted. Accepted. See HO #19. Accepted. Rejected. Contrary to fact. See HO #12 and #20. Accepted. Accepted. Rejected. Contrary to fact. See HO #12 and #20. Rejected. Contrary to fact. See HO #20. Rejected. Contrary to fact. See HO #20. Rejected. Contrary to fact. See HO #12. Accepted. Rejected. Contrary to fact. See HO #3. Rejected. Contrary to fact. See HO #3. Rejected. Irrelevant. Accepted. Reject first two sentences. Relates to construction. The rest is accepted. See HO #21. Accepted. See HO #12. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. See HO #23. Accepted. Accepted. Rejected. Not an allegation in the complaint. Rejected. Not an allegation in the complaint. Rejected. Contrary to fact. See HO #3, #7 and #10. Accepted. Rejected. Conclusionary. See HO #3. Rejected. Irrelevant to charges. Accepted. Accepted. See HO #11. Rejected. Contrary to facts of this case. See HO #3, #7 and #10. Rejected. Contrary to this particular situation when drawing sealed. See HO #3. Accepted. Rejected. Contrary to fact. Accepted. Rejected. Contrary to fact. Accepted. See HO #21. Accepted. See HO #21. Accepted. See HO #21. Accepted. See HO #22. Accepted. Accepted. See HO #22. Accepted. See HO #23. Accepted. Accepted. See HO #23. Accepted. See HO #23. Accepted. See HO #25. Accepted. See HO #25. Rejected. Irrelevant. See HO #3. Accepted. 121. Accepted. See HO #25. 122. Rejected. Contrary to fact. 123. Accepted. See HO #15, #17, #18, #21, #22, #23 and #25. 124. Accepted. See response to paragraph 123. 125. Accepted. See response to paragraph 123. 126. Accepted. 127. Accepted. 128. Accepted. See HO #10. 129. Accepted. 130. Rejected. Contrary to fact. See HO #27. 131. Accepted. 132. Rejected. Contrary to fact. See HO #27. 133. Accepted. 134. Accepted. 135. Accepted. 136. Accepted. 137. Rejected. Contrary to fact. See HO #27. 138. Accepted. 139. Rejected. Contrary to fact. See HO #27. 140. Rejected. Contrary to fact. See HO #27. 141. Rejected. Contrary to fact. See HO #27. 142. Accepted. 143. Accepted. 144. Rejected. Contrary to fact. See HO #27. 145. Rejected. Contrary to fact. See HO #27. 146. Accepted. 147. Accepted. 148. Rejected. Contrary to fact. See HO #29. 149. Rejected. Contrary to fact. See HO #29. 150. Rejected. Contrary to fact. See HO #29. 151. Rejected. Contrary to fact. See HO #29. 152. Rejected. Contrary to fact. See HO #29. 152(a). Rejected. Contrary to fact. See HO #28. Rejected. Contrary to fact. See HO #28. Rejected. Contrary to fact. See HO #28. 154(b). Accepted. 155. Rejected. Contrary to fact. See HO #29. 156. Accepted. See HO #30. 157. Accepted. See HO #30. 158. Accepted. 159. Accepted. 160. Accepted. 161. Accepted. See HO #30. 162. Accepted. 163. Rejected. Contrary to fact. See HO #31. 164. Rejected. Contrary to fact. See HO #31. 165. Accepted. 166. Accepted. See HO #32. 167. Accepted. 168. Rejected. Contrary to fact. See HO #31. 169. Accepted. 170. Accepted. 171. Accepted, but See HO #33. 172. Accepted. 173. Accepted. 174. Accepted. See HO #33. 175. Accepted. Accepted. Accepted, but see HO #34. Accepted. See HO #35. Accepted. Accepted. See HO #35. Accepted. Rejected. Not proved by clear and convincing evidence. See HO #36. Rejected. Not established fact. See HO #36. 184. Rejected. Contrary to fact. See HO #38. 185. Rejected. Contrary to fact. See HO #38. 186. Rejected. Contrary to fact. See HO #38. 187. Accepted. 188. Rejected. Irrelevant. 189. Rejected. Speculative. 190. Rejected. Contrary to fact. See HO #38. 191. Accepted. 192. Accepted. 193. Rejected. Contrary to fact. See HO #38. 194. Rejected. Contrary to fact. See HO #38. 195. Rejected. Contrary to fact. See HO #38. 196. Rejected. Contrary to fact. See HO #38. 197. Rejected. Contrary to fact. See HO #38. 198. Accepted. 199. Rejected. Contrary to fact. See HO #38. 200. Rejected. Contrary to fact. See HO #38. 201. Rejected. Contrary to fact. See HO #3. 202. Rejected. Contrary to fact. See HO #29. Rejected. Not alleged in complaint. Rejected. Contrary to fact. See HO #38. Rejected. Contrary to fact. See HO #38. Rejected. Not alleged in complaint. Rejected. Contrary to fact. See HO #29. 208. Rejected. See HO #3 and #12. 209. Rejected. See HO #3 and #12. 210. Accepted. 211. Accepted. 212. Rejected. Contrary to fact. See HO #38. 213. Rejected. Contrary to fact. See HO #38. 214. Accepted. See HO #39. 215. Rejected. Contrary to fact. See HO #10. 216. Accepted. 217. Accepted. See HO #9. 218. Accepted. See HO #9. 219. Accepted. 220. Accepted. 221. Rejected. Irrelevant. 222. Rejected. Irrelevant. 223. Rejected. Irrelevant. 224. Accepted. See HO #11 and #12. 225. Accepted. 226. Accepted. 227. Accepted. See HO #41. 228. Accepted. See HO #41. 229. Accepted. See HO #40. 230. Accepted. 231. Accepted. See HO #40. 232. Accepted. Accepted. See HO #41. Accepted. See HO #41. Accepted. Accepted. Accepted. See HO #43. Accepted to critical storm 10-year event standard. Rejected beyond 10-year critical year standard. Accepted. See HO #42. Accepted. See HO #44. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #45. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #45. Accepted. Accepted. See HO #45. Accepted. See HO #45. Accepted. See HO #45. Accepted. See HO #45. Rejected. Irrelevant. See HO #42. Accepted. Accepted. See HO #43. Accepted. See HO #43. Accepted. See HO #44 and #45. Accepted. See HO #45. Rejected. Contrary to fact. See HO #42. Accepted. Accepted. Accepted. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #8 and #9. Accepted. See HO #9. Rejected. Contrary to fact. See HO #4. Accepted. See HO #9. Accepted. See HO #9. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #10. Accepted. Accepted. See HO #9. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #9. Accepted. Rejected. Contrary to fact. Rejected. Argument as opposed to factual determination. Attorney comments are not evidence. Rejected. Improper summary. Rejected. Improper summary. Rejected. Irrelevant. Rejected. Contrary to fact. See HO #14 and #15. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #11. Attorney comments not evidence, therefore, that portion is rejected. Rejected. Improper summary. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Attorney comments, not evidence. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #11. Accepted. Accepted. Accepted. Accepted. Accepted, in part. See HO #27 - #39. Those parts rejected are contrary to fact. Accepted. See HO #27 - #39. Accepted. See HO #27. Accepted. See HO #35. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #28. Rejected. Contrary to fact. Unknown, but resolved in Respondent's favor. See HO #36. Accepted. Accepted. Accepted. Accepted. See HO #13. Rejected. Contrary to fact. See HO #15. Accepted, as his testimony only. Rejected as finding of fact. Improper summary. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted, but not as to Respondent Wunder's design. Accepted. See HO #27 - #39. Accepted. See Preliminary Statement. Accepted. See HO #11 and #12. Accepted. Accepted. Rejected. Attorney's comments, not evidence. Rejected. Contrary to fact. See HO #43 - #45. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Rejected. Contrary to fact. See HO #40. Accepted. Accepted. Accepted. Accepted. See HO #40 and #43 - #45. Accepted. Accepted. Rejected. Contrary to fact. See HO #43 - #45. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO #45. Accepted. Accepted. Rejected. Contrary to fact. 117. Rejected. Speculative. Improper summary. 118. Rejected. Irrelevant. 119. Rejected. Irrelevant. 120. Accepted. 221. Accepted. 222. Rejected. Irrelevant. 223. Rejected. Contrary to fact. See HO #45. 224. Accepted. 225. Accepted. 226. Accepted. 227. Accepted. 228. Accepted. 229. Accepted. Rejected. Weight and sufficiency determination. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #40. Accepted. COPIES FURNISHED: Wings S. Benton, Esquire Post Office Box 5676 Tallahassee, Florida 32314-5676 Diane E. McGill, Esquire TURK & SHIPP, P.A. 4223 Del Prado Boulevard Cape Coral, Florida 33904 Carrie Flynn, Acting Executive Director Florida Board of Professional Engineers Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0755 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent engaged in an unlawful employment practice when it failed to hire Petitioner as a shift supervisor at the Conserv I wastewater treatment facility.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is a white male. At the time of the events giving rise to this proceeding, Petitioner was 52 years old. Petitioner holds a Class “A” wastewater treatment plant operator license from the State of Florida. Petitioner has worked for the City as a wastewater treatment plant operator since 1991. All of Petitioner’s experience with the City has been at the City's Iron Bridge facility. Respondent is a municipality of the State of Florida. Respondent operates at least three wastewater treatment facilities -– known as Conserv I, Conserv II (not directly implicated in this case), and Iron Bridge -– through its Wastewater Process and Operations Bureau (Wastewater Bureau). Each facility is slightly different. The Conserv I facility has a capacity of 7.5 million gallons per day (mgd) and is designed to service approximately 75,000 people. The facility uses a unique, technologically complex process to treat wastewater. The treated wastewater from the Conserv I facility is used for irrigation, and is referred to as “reuse” or reclaimed water. The Iron Bridge Facility is larger than the Conserv I facility. It has a capacity of 40 mgd and is designed to service approximately 400,000 people. The facility uses a more traditional process to treat the wastewater. The treated wastewater from the Iron Bridge Facility is discharged into wetlands and rivers; it is not used as reclaimed water. Hiring Process for the Conserv I Shift Supervisor In early 2001, a shift supervisor position came open at the Iron Bridge facility. Petitioner applied for that position, but he was not interviewed. The Iron Bridge shift supervisor position was filled by Don Proscia, a 64 year old white male. Mr. Proscia was a shift supervisor at the Conserv I facility, and his hiring at the Iron Bridge facility was considered to be a “lateral transfer” by the City. Apparently, the City does not interview other candidates where an existing employee requests a lateral transfer, which explains why Petitioner was not interviewed for the Iron Bridge shift supervisor position. As a result of Mr. Proscia’s lateral transfer, a shift supervisor position came open at the Conserv I facility. The minimum qualifications for the Conserv I shift supervisor position, as reflected on the job posting (Joint Exhibit 12), were graduation from high school, two years of experience in the operation of a wastewater treatment facility, and a valid Florida driver's license. The position also required a current Class "B" wastewater treatment operator license, and required a Class "A" license to be obtained within two years of employment. Experience in advance wastewater treatment and prior supervisory experience were preferred. Petitioner applied for the Conserv I shift supervisor position. Terry White and Klaus Blixer also applied for that position. Mr. White is an African-American male, and he was 29 years old at the time. He has worked for the City as a wastewater treatment plant operator since 1994. All of Mr. White’s experience with the City has been at the Conserv I facility. At the time of his application, Mr. White held a Class “B” wastewater treatment plant operator license. Subsequently, he obtained a Class "A" license. Mr. Blixer is a white male. The record does not reflect his age. Mr. Blixer has worked for the City as a wastewater treatment plant operator since approximately 1995. All of his experience with the City has been at the Iron Bridge facility. At the time of his application, Mr. Blixer held a Class “A” wastewater treatment plant operator license. The three applicants for the Conserv I shift supervisor position were interviewed by a committee composed of Ernie Cox, Charlie McComas, and Paul Deuel, all of whom are members of management with the Wastewater Bureau. Mr. Cox is an African-American male; Mr. McComas and Mr. Deuel are both white males. All of the committee members are 40 years of age or older. The committee interviewed each applicant and asked them the same set of interview questions. The interviews were all conducted on the same day. After all of the interviews were complete, the committee discussed their general impressions of each applicant. The committee did not make the hiring decision on that day. However, each of the committee members testified at the hearing that they ranked Mr. White the top candidate at that point, and two of the three committee members testified that they considered Mr. Blixer (not Petitioner) to be the second-best candidate. In an effort to obtain additional input on the applicants, Mr. Cox contacted Charles Thompson, the plant manager at the Iron Bridge facility where Petitioner and Mr. Blixer worked. Mr. Cox is the plant manager at the Conserv I facility where Mr. White worked, so he was generally familiar with him and his qualifications; however, he also obtained feedback on Mr. White from Mr. McComas, who was a chief operator at Conserv I and was more familiar with Mr. White's attendance and on-the-job performance. Mr. Thompson did not strongly recommend either Petitioner or Mr. Blixer. He characterized Petitioner as an "average" employee who did what was asked of him but nothing more. Mr. Cox relayed this information to the other members of the committee. Based upon the interviews and the additional information acquired by Mr. Cox, the committee unanimously agreed to recommend that Mr. White be hired for the Conserv I shift supervisor position. Mr. Cox forwarded the committee’s recommendation to David Sloan, the chief of the Wastewater Bureau. Mr. Sloan accepted the committee’s recommendation and forwarded it to Tom Lothrop, the director of the Environmental Services Department, for final approval. Mr. Lothrop gave final approval to the recommendation, and Mr. White formally assumed the shift supervisor position in June 2001. There is no credible evidence that either race or age were considered at any point during the interview process or that the committee was given a mandate by anyone in the City's management to hire a particular person or a person of a particular race or age for the Conserv I shift supervisor position. Indeed, at the hearing, each member of the interview committee adamantly (and credibly) denied consideration of race or age in connection with their recommendation to hire Mr. White. The committee members based their recommendation to hire Mr. White on his qualifications, work ethic, and experience at the Conserv I facility. As discussed below, Mr. White was more qualified for the Conserv I shift supervisor position than was Petitioner. The only direct evidence of discrimination cited by Petitioner in support of his claim allegedly occurred during the course of the internal grievance process initiated by Petitioner after he was not hired for the shift supervisor position. That process and the alleged evidence of discrimination are discussed below. City’s Internal Grievance Process After Petitioner learned that he had not been hired for the shift supervisor position, he filed a grievance with the City. The grievance was denied at each step in the process as described below. The City’s grievance process includes four steps. Step One is a hearing before Petitioner's plant manager, i.e., Charles Thompson. Step Two is a hearing before the chief of the Wastewater Bureau, i.e., David Sloan. Step Three is a hearing before the director of the Environmental Services Department, i.e., Tom Lothrop. Step Four is a hearing before a three-member grievance committee composed of two persons selected by the City and one person selected by Petitioner. The first three steps are relatively informal and are not recorded. They are meetings and/or discussions to address the concerns of the person who filed the grievance. Step Four is a more formal hearing, and it is tape recorded. Petitioner waived his Step One hearing, and the record does not include any credible evidence regarding Petitioner's Step Three hearing. Indeed, the focus of Petitioner's discrimination claim is on events which allegedly occurred at the Step Two and Step Four hearings. Petitioner's Step Two hearing was conducted on September 14, 2001. There is no credible evidence that Mr. Sloan (or anyone else) made a statement at that hearing regarding a need or requirement to hire a minority for the Conserv I shift supervisor position. Petitioner's Step Four hearing was conducted on November 10, 2001. That portion of the tape recording of the Step Four hearing introduced by the parties in this proceeding does not include any direct evidence of discrimination. Mr. Sloan did state that given two equal candidates, he would favor the minority in an effort to increase the diversity in the Wastewater Bureau. However, he further stated (consistent with his testimony at the hearing) that race did not factor into the decision to select Mr. White for the Conserv I shift supervisor position because Mr. White and Petitioner were not equal candidates. One of the exhibits discussed by Mr. Sloan at the Step Four hearing compared the percentage of black and white managerial employees in the Wastewater Bureau as a result of Mr. White's promotion with the percentage which would have existed if Petitioner had received the shift supervisor position. That exhibit, which was received in this proceeding as Joint Exhibit 7, was prepared by Mr. Sloan solely for use at the Step Four hearing to rebut Petitioner's discrimination claim and to show that the City does not discriminate based upon race or age. The exhibit was not used in connection with the decision to select Mr. White for the Conserv I shift supervisor position. Indeed, there is no credible evidence that the document existed prior to the Step Four hearing. In any event, Joint Exhibit 7 shows that there is not a pattern of discrimination in the Wastewater Bureau against persons in Petitioner's class (i.e., white males over age 45). The exhibit shows that more than 67 percent of the managers and supervisors in the Wastewater Bureau are white, and 35 percent of the managers and supervisors were promoted to those positions after the age of 46. The other exhibit discussed by Mr. Sloan at the Step Four hearing compared the qualifications of Mr. White and Petitioner. That exhibit, which was received in this proceeding as Joint Exhibit 6, presents an incomplete view of Petitioner's education and training because Mr. Sloan obtained the information on Petitioner (and Mr. White) from the personnel files maintained at the Wastewater Bureau, not the files maintained in the City's Personnel Office. The omissions in Joint Exhibit 6 are immaterial in this proceeding, however, because the record includes the Personnel Office files for Petitioner (Joint Exhibit 1) and Mr. White (Joint Exhibit 2), and those exhibits rather than Joint Exhibit 6 were relied upon in evaluating the relative qualifications of Petitioner and Mr. White. Relative Qualifications of Petitioner and Mr. White Both Petitioner and Mr. White met the minimum qualifications for the Conserv I shift supervisor position as reflected on the job posting. Neither Petitioner nor Mr. White has a college degree, but both have taken college courses. Mr. White has taken courses towards a business administration degree at Valencia Community College. Petitioner completed a correspondence course from Michigan State University on supervisory management in the water and wastewater field.2 Both Petitioner and Mr. White have attended numerous seminars and continuing education courses on wastewater. Petitioner has held a Class "A" wastewater treatment plant operator license since at least 1995. Mr. White held only a Class "B" license at the time of his application; however, he obtained his Class "A" license in April 2002, which is well within the time specified in the job posting for the shift supervisor position. Mr. White has a reclaimed water field inspector certification, which is important for Conserv I because the facility produces reclaimed water. Petitioner does not have this certification. Both Petitioner and Mr. White had worked "out of class" as shift supervisors at their respective plants. Both performed well in those positions. Petitioner had slightly more experience than Mr. White as a wastewater treatment plant operator with the City, i.e., 10 years compared to seven years. However, all of Mr. White's experience was at the Conserv I facility, whereas all of Petitioner's experience was at the Iron Bridge facility. The location of the experience was one of the most significant factors in the hiring decision. Mr. White's experience at the Conserv I facility meant that he would not have a significant learning curve in the shift supervisor position. By contrast, it would take Petitioner at least three to six months to adapt to the operational differences at the Conserv I facility. The other significant factors in the hiring decision were Mr. White's work ethic, his demonstrated communication and leadership skills, and his familiarity with the City's policies and procedures. Mr. White demonstrated his communication and leadership skills as a union representative and as a member of the City's pension advisory board. Mr. White's familiarity with the City's policies and procedures was important because he would be responsible for interpreting and applying those policies and procedures to the employees that he supervised. Mr. White was characterized by his supervisors as an exemplary employee who was highly motivated and takes pride in performing his job well. He willingly took on additional tasks, and he worked well without direction. By contrast, Petitioner was characterized by his supervisors as an "average" employee who did what was asked of him but nothing more.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 13th day of December, 2002.
