Findings Of Fact At all times pertinent to the issues herein, Respondent was a certified general contractor in the State of Florida having been issued license Number CG C017772. On April 13, 1986, the Respondent, Richard T. Warnky, entered into a written contract with Jackson S. and Muriel Boyer to construct a home for them on Block 1244, Lots 7 and 8, Unit 19, Cape Coral, Florida, otherwise known as 2414 S.E. 28th Street for a contract price of $95,295.00. The Boyers gave Respondent a $550.00 down payment prior to signing the contract and at the time of signing, gave him an additional 10 percent of the contract price, or $9,529.50. The contract called for the payment of an additional 10 percent at commencement of construction and this payment was made at ground breaking. When the plumbing was roughed in and the slab poured, according to the contract, the Boyers paid Respondent an additional 10 percent and an additional 20 percent, or $19.059.00 when the masonry work was completed and the lintel poured. The contract called for three additional payments of 20 percent and two 15 percent payments, but for reasons subsequently to be discussed, none of these three payments was made. The contract called for the house to be completed in eight months, (240 days). According to Mr. Boyer, the Respondent left town for 8 weeks as soon as he had been paid the first 10 percent payment. Respondent claims that he was out of town for one week during which time he took ill and was physically unable to begin construction for an additional seven weeks. He also contends that he did not want construction to start without his being there to supervise it. Respondent's version of this situation is accepted. From the beginning of construction, Mr. and Mrs. Boyer had questions concerning the quality of the work being done When the slab was poured, it had holes in it and showed hills and valleys. Nonetheless, it passed inspection by the building inspector and the block work started. Pictures taken by Mr. Gogel, the licensing inspector for the City of Cape Coral at the request of Mr. Davenport, the building official, in July, 1986, reflect numerous deficiencies in the construction. They show large gaps in the vertical block joints; a lateral deflection in the tie beam poured at the top of the top course of blocks; blow out of the frame for the tie beam resulting in concrete running down the block walls; displacement of the tie beam which shows bulges and deformities; loose mortar in joints of the fifth course of blocks from the bottom; voids in joints; severe slippage in the top of the tie beam resulting in a reduction of the top; honeycombing of the concrete in the tie beam with rough attempts shown to patch it; slippage and deflection of the tie beam; and similar defects shown in the 14 pictures making up Petitioner's Exhibit 4 as well as the 15 additional pictures taken by Mr. Gogel and Mr. Davenport which were introduced as Petitioner's Composite Exhibit 6. On August 5, 1986, after Mr. Davenport and Mr. Gogel had visited the construction site at the request of Mr. Boyer, Mr. Davenport wrote Respondent a letter in which he discussed various items of workmanship on the property which needed Respondent's attention. In his letter, Mr. Davenport referred to the provisions of the American Concrete Institute Standards and the standards of the City of Cape Coral. He specifically pointed out that as to joints between cinder blocks, the joint should be not less than one quarter inch nor more than five eighths inch wide. His inspection indicated many of the masonry joints exceeded five eighths of an inch because the blocks were cut with a hammer rather than a block saw and in some cases, poured concrete extruded beyond the surface of the block. Mr. Davenport further addressed additional items which, he indicated, would require attention by the contractor in order for the work to meet the standards of acceptability for good residential construction in the City of Cape Coral. These included: waviness or blow out of sections of the tie beam; extrusion of concrete at the blow out patches; proper preparation of the cinder block walls for the receiving of stucco surface; honeycomb portions of the tie beam; and shimming and re-nailing of furring strips on the interior walls which had bent to follow the warped inner curve of the tie beam. These word descriptions are of the same defects shown in the photographs mentioned above. When Respondent reached that point in the construction where he felt an additional draw payment was called for, he requested it of the Boyers, but because of their dissatisfaction with the quality of the work he had done, they refused to make such payment. Mr. Warnky thereafter contacted his attorney who advised the Boyers by letter dated January 26, 1987, that their continued refusal to make draw payments as required by the contract, would jeopardize completion of the construction. No further payments have been made by the Boyers, however, since they consider the workmanship to be substandard and Mr. Warnky has done no further work on the project. The Boyers have had the work finished by another contractor at considerable additional expense. It should be noted, however, that the work done by the Respondent was passed by the building inspectors for the City of Cape Coral who did not indicate that it was below the cited code standards. Respondent is charged with gross negligence as a result of his failure to properly supervise the laying of the block walls with a resultant defect in the tie beam attached thereto. He admits that he was not present for approximately five to seven days during the ten days to two weeks that it took to lay the block on this project. Both Mr. and Mrs. Boyer contend that Respondent was not present at any time during the laying of the blocks by his employee, Mr. Sweebe. Since Mr. Boyer admits that he was not present at all times on all days that the blocks were being laid, it is impossible for him to indicate with any certainty that Respondent was never present. At best, the evidence shows that on those days when Mr. or Mrs. Boyer were present, Respondent was not present for the laying of the blocks. Based on his visit to the site and his observation of the workmanship, Mr. Davenport concluded that it was not of good quality. The materials used appeared to be suitable, but the application of the materials did not meet the criteria of the Southern Standard Building Code. These conditions are reparable, however, and it appears that Respondent did make efforts to repair some of the defects pointed out. For example, photographs taken on November 5, show an attempted "repair" of a honeycomb patch on the tie beam as does the November 19 photo. This latter picture, however, also shows that the tie beam is out of plumb and that furring strips were shimmed and covered with new furring in an attempt to comply with Mr. Davenport's letter of August 5. Further, this photo showing the waviness on a part of the tie beam indicates some grinding down in an attempt to bring it within standards. Notwithstanding, in Mr. Davenport's opinion, the workmanship by Respondent is below what is normally seen in the industry in Southwest Florida as it pertains to block masonry. These sentiments were reiterated by Mr. Verse, a certified general contractor in Sarasota for 13 years. Mr. Verse evaluated the various photographs taken by Mr. Gogel and Mr. Davenport and compared the work done by the Respondent as depicted on the pictures, against the accepted standards utilized by the building trade in Florida. He concluded that Respondent's work was not acceptable. He agreed with Mr. Davenport as to the deficiency in the joints, in the support of the tie beam, of the forming of the tie beam, and as to all masonry and concrete work. The negligence involved here was in letting this type of work go on when it was not up to code. A prudent general contractor would have stopped any subcontractor when he saw this type of work being done. If Respondent was not present to do so, then he failed to properly supervise. If he was present and allowed this substandard work to continue, he was grossly negligent. Mr. Verse rejects Respondent's excuse for washed out mortar joints, attributing them to rain, as unsatisfactory and unacceptable because a careful contractor will generally cover his work with a plastic sheet in the event rain is imminent. Respondent states that in his years as a contractor, he has never seen this done. Neither did Mr. Mahlmeister. In any case, a prudent contractor would make some provision to protect his work against any outside factor which might reasonably tend to threaten it. Respondent's failure to do so does not excuse the result. The honeycombing and bulging of the tie beam could occur from either improperly formed concrete or properly formed concrete which was improperly vibrated. Based on his examination of the photographs, Mr. Verse concluded it was probably improperly formed. Supports for the forming were not used. Had they been, they would have prevented the bulges that are seen. Even if the form work was properly braced and formed, if the concrete in the tie beams was improperly poured, the tie beam could bulge out at the bottom. Mr. Dililch, the individual who poured the concrete for Mr. Warnky, indicated that the procedure was accomplished at the very hottest part of the day in the hottest part of the year, which caused the concrete to dry out too rapidly and necessitated adding additional water to the mixture in order to keep it pourable throughout the process. Mr. Dililch indicates that though those abnormal steps were necessary, nonetheless, the concrete was poured in one session without any necessity to layer it. There appear to be no joints in the beam, the major defects being the honeycombing and bulging. Mr. Dililch recognizes there were blow outs where the concrete oozed out from under the framing, but contends that these are relatively common and occur on many different jobs by different contractors. Numerous factors could cause a blow out including loose braces, loose clamps, and things of that nature. Prior to pouring the concrete here, Mr. Dililch examined the form carefully and was satisfied it met standards and was safe. Nonetheless, the tie beam contained several examples of honeycombing. Blow outs are difficult to see before the concrete is formed. Older rental clamps quite often come loose and the looseness shows up only when the concrete is poured into the form generating the stress which forces the "mud" out through the joint. On every house he has worked on, there has been at least one blowout. It is, in his opinion, a common occurrence. His self-serving testimony is of little probative value here. The forming for the tie beam was inspected by Mr. Mahlmeister before the beam was poured and determined to be safe. Mr. Verse was shown pictures of work accomplished by other contractors which show similar defects to those attributed here to the Respondent and he admits that other contractors do, from time to time, substandard work. However, based on the opportunity he had to examine Respondent's work in this instance, the Respondent's performance showed defects throughout the entire project, not merely in isolated instances. The deficiencies in Respondent's work are broad based and wide spread. While all contractors make mistakes, the number of Respondent's mistakes take his performance beyond the realm of accident and indicate substandard work in general. Respondent is a small-contractor who does most of the work on his projects by himself and supervises the rest. It is his practice to be present on the construction scene every day but in this case, he admits he was not present all of every day. He has been a contractor in Florida for seven years, building approximately two houses per year. Prior to coming to Florida, he was a builder up north. He takes a great deal of pride in his work and has had very few complaints concerning the quality of his construction. In fact, he got the Boyer job because he had built a house for the Boyer's daughter who was happy with the quality of his construction. He believes his work is equal to the standards of most Cape Coral builders. Respondent admits that he makes mistakes, but he strongly contends that none of the deficiencies here were serious or would make the house unsafe. With all the complaints against it, the tie beam poured under Respondent's supervision, was never changed or altered. Most of the defects cited were cosmetic in nature and would have been corrected by him when the house was stuccoed. Respondent has been disciplined by the Petitioner, Construction Industry Licensing Board, previously, in 1984, when he was fined $250.00. It would appear that action was based on similar grounds to those in the instant action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a certified general contractor be suspended for six months, that he pay an administrative fine of $500.00, and that he be reprimanded. RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1718 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. BY THE PETITIONER Petitioner failed to number Findings of Fact submitted and included them in a section entitled FINDINGS OF FACT AND CONCLUSIONS OF LAW. However, as best as can be determined: Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a Conclusion of Law. Rejected as a restatement of testimony. Rejected as a restatement of testimony. Accepted. Rejected as a Conclusion of Law. Accepted as evidence of prior disciplinary action. BY THE RESPONDENT None submitted. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard T. Warnky 4924 S. W. 11th Court Cape Coral, Florida 33904 Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Petitioner took the mechanical contractor examination in February, 1989. A passing score was 69.01. Petitioner received a score of 67.5, which was later adjusted to 68 after the review/regrade process was completed. Petitioner timely challenged seven questions. However, at the hearing, he dropped his challenge to six of these questions. The sole question that Petitioner challenges is MC 430, question 17. The question, which is worth two points, is: Given: A fibrous glass air duct conveys 15,000 cfm at a velocity pressure of 4.0" WG. The velocity of the air in the duct is: less than 6000 fpm. between 6001 fpm and 7000 fpm. between 7001 fpm and 8000 fpm. more than 8000 fpm. Petitioner answered "(C)." The correct answer is "(D"). The examination was an open-book test. Some, but not all, questions provided the candidate with a reference from which he could often find a formula that would help him answer the question. Question 17 did not provide a reference. However, the formula for deriving the answer to question 17 was contained in one of the reference materials that candidates, including Petitioner, brought with them to the test for use during the test. At the top of page 17-1 of the SMACNA publication entitled, "Energy Recovery Equipment and Systems," a formula appears that will solve the problem. The formula is that velocity in feet per minute equals the square root of the velocity pressure in water gauge multiplied by 4005. In this case, the square root of 4" WG is 2, which multiplied by 4005 is 8010 fpm. Petitioner did not use the SMACNA publication or the formula contained in the publication. Instead, he used what is called a ductulator to calculate the answer. The ductulator is a device consisting of two cardboard circles attached by a rivet. By sliding the two circles to line up markings indicating two factors, the operator can derive additional information concerning the design specifications' of a duct system. In this case, Petitioner lined up the air volume with the velocity pressure to derive the velocity. The ductulator is calibrated to show 7000 fpm, 7500 fpm, and 8000 fpm in the relevant range. A finer reading requires extrapolation, which is difficult because a distance of only 1/16" represents 500 fpm at this point on the ductulator. On Petitioner's ductulator, which is a Trane ductulator bearing a 1976 copyright, the answer was about 7700 fpm. However, another Trane ductulator bearing a 1950 copyright disclosed the answer as slightly over 8000 fpm, although a different 1950 Trane ductulator showed the answer as about 7700 fpm. Petitioner's reliance on a ductulator was misplaced. The scale of calibration alone should have placed him on notice of the danger of using this rough instrument to answer question 17. When he derived an answer so close to the 8000 fpm break point, he could no longer rely on the ductulator, assuming that it was reasonable to do so in the first place, especially in view of the easy-to-use formula that provided the precise answer.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation enter a Final Order dismissing Petitioner's challenge to the grading of the mechanical contractor's examination that he took in February, 1989. ENTERED this 26th day of February, 1990 in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1990. COPIES FURNISHED: Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert A. Berki, pro se 2641 Capp Circle Kissimmee, FL 32743 G. W. Harrell, Senior Attorney Department of Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32201
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent George W. Morrison was a registered residential contractor holding license number RR 0021945. On April 28, 1979, respondent entered into a contract with T. Joseph Feeney to construct a residence and pool on Sanibel Island "according to plans and specifications approved and signed by both parties" for the sum of $100,200.00. Construction on the residence was begun by respondent in late August, 1979. In January, the Feeneys desired to move into the home because they were having difficulty locating rental property. At that time, construction was not completed and neither a final inspection nor a Certificate of Occupancy had been obtained. Although construction had not yet been completed and respondent advised Mr. Feeney that it would be against the law to move into the house before a Certificate of Occupancy was obtained, Mr. Feeney and his family moved into the house on or about January 12, 1980. During the first week of occupancy, Mr. Feeney noticed that there was a sag in the bearing wall of the kitchen and that the house "swayed considerably." According to Mr. Feeney, after he was advised by Mr. Benson, a structural engineer, to either move out of the house or to "shore the house up, he attempted to contact the respondent. Mr. Feeney could not recall whether this occurred in late January, February or March of 1980. Being unable to contact the respondent, Mr. Feeney found his carpenter, Doug Hale, and explained the problem to him. Hale saw respondent that same day and respondent instructed Hale and his crew to go out to the Feeney residence that afternoon and shore the house up. Mr. Hale did notice a deflection and observed that one span was sagging down a small amount. He observed that the bridging work had been nailed from the top and recalled that the bottom nailing was to be performed after the house had settled. When performing the preventive shoring, Mr. Hale noticed that the bolts had been properly installed with washers. The bolts would have been retightened after the wood had dried and before calling in for a final inspection. Upon learning of the structural deficiencies in the Feeney residence, respondent hired his own structural engineer, Charles Wunder, and took the plans and specifications for the Feeney residence to him. Mr. Wunder found that the original drawings, plans and specifications caused the deflection problem in that the framing members used for the ledger beams were not of sufficient strength to hold up in the area where they were placed. Wonder's remedial plan was to use additional beam supports and steel flitch plates. He so advised the respondent by a letter dated February 12, 1980 and an attached sketch for the remedial work. After receiving Mr. Wunder's plans to remedy the structural defects, respondent ordered the steel plates and had them delivered to the Feeney residence. When respondent went there to perform the work, Mr. Feeney informed him that he wanted the work performed according to Mr. Benson's plans and blueprints. Benson's plans were much more involved and extensive, and respondent did not have the materials available to perform the work. Thereafter, an impasse occurred between Mr. Feeney and the respondent as to the manner in which the structural remedial work should be performed, and respondent was terminated by Mr. Feeney on or about April 13, 1980. Both respondent and his engineer, Mr. Wonder, believed that Mr. Benson's plans were "overdesigned" and massive compared to what needed to be done to make the residence structurally sound. Respondent testified that his engineer's plans for remediation would result in a cost of about $1,000.00. Mr. Feeney testified that he incurred costs of approximately $21,000.00 to have the remediation work performed according to Mr. Benson's plans. There was evidence that at least a portion of this figure was attributable to decorative and swimming pool work, as opposed to structural work. In late February or early March, 1980, after the preventive shoring had been completed by Doug Hale, the Building Official for Sanibel, George E. Blain, inspected the Feeney residence at Mr. Feeney's request. Mr. Blain found that the flooring and joist system had been installed according to the plans and specifications submitted and approved for the building permit. He could not give an opinion as to the cause of the deflection of the beams, but felt that there appeared to be a problem with the construction which could be corrected in the normal construction phase. A violation of the Southern Standard Building Code would occur only if the problem were not corrected at the time of final inspection, and this project had not yet been called up for such final inspection. While Mr. Blain found that some of the bolts were not properly placed or tightened at the time of his inspection, he found nothing to indicate that the required number of nails were not in place. After his inspection, Mrs. Blain wrote a letter to the respondent expressing his opinion that extensive remedial work was necessary to stabilize the floor support system of the Feeney residence. Respondent was instructed to have a registered engineer examine the floor support system and submit a report detailing the requirements necessary for loads stability. This report was to be received by Mr. Blain's office prior to the commencement of any corrective work by the respondent. Mr. Blain never received a response from the respondent to his March 5, 1980 letter. Respondent explained that he did not receive this letter from Mr. Blain until some time near the time that he and Mr. Feeney had reached an impasse situation with regard to the manner in which the remedial work was to be done. He therefore did not respond to Mr. Blain's letter because he did not believe that he would be performing the work.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against George Morrison on March 8, 1982, be DISMISSED. Respectfully submitted and entered this 10th day of March, 1983, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street (Suite 204) Tallahassee, Florida 32301 Allan T. Griffith, Esquire Griffith & Griffith, P.A. 9150 S. Cleveland Ave. (Suite 1) Ft. Myers, Florida 33907 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Ronald L. Hurt, was a licensed professional engineer having been issued license number PE 0032435 by petitioner, Department of Professional Regulation, Board of Professional Engineers (Board). Respondent was first licensed as a professional engineer in Kentucky in 1965 and received his Florida license in 1982. When the events herein occurred, respondent was a shareholder in and served as president of Anchor Engineering Company (Anchor) in Naples, Florida. He also supervised the structural engineering portion of the firm's business. He has since terminated that relationship and is now affiliated with another engineering firm in the same city. In August 1989 the City of Cape Coral (the City) issued an invitation to various engineering firms, including Anchor, to submit proposals to investigate the structural integrity of a seven year old abandoned building owned by the City and located on St. Jock Boulevard. The City was considering whether to complete construction of the building and convert it into a community theater or to demolish the existing structure and build a new facility. At that time, the building was approximately 90% complete but without a roof and was between 6,000 and 8,000 square feet in size. Anchor was the successful "bidder" and respondent ultimately submitted a final written report to the City. Relying upon that report, the City decided to continue completion of the building. The project was successfully completed and is now known as the Cape Coral Community Theater. However, an engineer from another firm in Cape Coral obtained a copy of respondent's report, reviewed it, and based upon his belief that the report was deficient, filed a complaint against respondent with the Department of Professional Regulation (DPR). That prompted an investigation by DPR and the issuance of an administrative complaint charging respondent with negligence in the preparation of his report. The Scope of the Engagement The City's decision to seek a structural report came after another professional engineer, James A. Schivinski, had performed an inspection and prepared a "general physical condition report." The work was performed on an undisclosed date by Schivinski without charge and as a favor to the City. After making a field inspection, Schivinski recommended the City have a structural analysis of the building performed by a professional engineer. This was because he had observed "serious defects in the masonry wall construction of the building". Until a further assessment of the structural integrity of the building was made, Schwinski recommended that "work (should) not be continued." 1/ Schwinski's conclusions and recommendation are contained in a written report submitted to the City and received in evidence as petitioner's exhibit 2. Acting upon Schivinski's recommendation, on August 1, 1989, the City, through its contracts administrator, Al Melendez, telephonically solicited proposals from various engineering firms. Because the City desired to make a decision on the building as soon as possible, Melendez asked that each firm submit its proposal by the following day. Anchor did so and proposed to complete the work for $4,500. Other proposals included one by the engineering firm of Jenkins and Charland, which submitted a proposal in the amount of $14,000. Anchor's proposal was accepted by the city on August 2 and Anchor was told to complete a written report within two weeks from the date on which it was selected. The scope of the engagement was not reduced to writing by the City. However, according to Melendez, Anchor was to look at Schivinski's report, review a set of original drawings, and advise the City if it could "reasonably finish up the building." Anchor was not requested to perform testing to verify the strength of materials nor to furnish a final design report for the project. Further, the City did not expect Anchor to give them actual cost estimates for performing any required modifications. In its response to the invitation, Anchor agreed to (a) perform an on- site structural investigation of the existing structure ($1500), (b) review existing drawings of the structure ($1800), and (c) issue a written report based on the findings in the first two steps ($1200). The City agreed with this scope of services and Anchor proceeded in accordance with its proposal. As noted earlier, both the City and Anchor understood that no testing of materials (e. g., compression, prism and compaction tests) was to be performed by Anchor but instead would be done at a later time by a specialized testing firm if the City decided to continue with the project. The Preparation and Issuance of the Report Two Anchor professional engineers, Tony Boumitri and Paul Endres, promptly visited the building site on two occasions and made a visual inspection. In addition, respondent made two subsequent visits to the site to confirm his colleagues' conclusions. They also reviewed Schivinski's report and the original building plans for the structure. After a preliminary draft was prepared by Boumitri on August 11, 1989, respondent met with city officials for three hours to explain its content, answer questions and determine if further information was required. A final report entitled Structural Investigation Analysis and Report was then prepared by respondent, and another three-hour meeting with city officials was held to explain its content. On August 18, 1989, respondent signed and sealed the final report and delivered it to city officials. Thereafter, respondent met for several hours with the full city commission and gave an oral presentation concerning his report. The record raises an inference that a transcript of the commission meeting is available, and respondent's remarks and explanations given to the commission are available for review by any interested party. Among other things, respondent advised the City that his report was a preliminary report, that testing and confirmation of materials was still required at a later date, that the structure did not meet code requirements, but that with appropriate modifications the building could be used for its intended function. The Genesis of this Complaint On an undisclosed date after the report had been filed, a professional engineer, Jack T. Sauerland, who happened to work for the engineering firm which had submitted the unsuccessful $14,000 bid, requested a copy of respondent's report from the City. Ostensibly for the purpose of acting as a concerned citizen and taxpayer, Sauerland reviewed the preliminary and final reports, noted what he perceived to be various deficiencies in the final report, discussed those observations with certain city employees, and filed a complaint against respondent with DPR. That precipitated the filing of this action against respondent. Standards Governing Professional Engineers Both parties agree there are no written standards which set forth the specific matters that a professional engineer must put in an engineering report. According to the Board's expert, this is because a report can be used for a number of purposes and it would be difficult to write a rule that would fit all situations. However, the Board expert identified two broad standards, both set forth in Rule 21H-19.001(3)(a), Florida Administrative Code, that must be followed by a professional engineer when drafting a report. First, the engineer must use "due care" in preparing the report, and secondly, he must have "due regard for accepted engineering principles". According to the expert, these principles include such things as technology, mathematics, logic, and the clear and precise use of language. In other words, a report must proceed logically from evidence to assumption to analysis to conclusion and do so in clear and precise language. It is also inappropriate to omit information from the report even if the client is aware of the information being omitted. This is because persons using the report at a future time would not be privy to that omitted information and would be unable to evaluate its reliability. Thus, while an engineering report must satisfy the clients, it must also be complete enough to safeguard the public health, safety and welfare. The expert also opined that when an engineer's client is a governmental entity, such as a city, it is improper to supplement a written report by oral communications because (a) third parties relying on the written report at a future time would have no way of reviewing those oral comments and (b) the public records law dictates that such reports be reduced to writing. The Contents of the Report The report in question has been received in evidence as a part of petitioner's composite exhibit 6 and consists of ten pages including photographs. The written portion of the report is four and one-half pages. In addition, respondent submitted twelve pages of notes and calculations in conjunction with the report. The report is divided into six sections, including summary of findings, background information, field investigation, analysis, recommendations and conclusion. The scope of the report was described on page one as follows: Based on the data obtained, and based on the available drawings, Mr. Boumitri and Mr. Endres performed their structural analysis to deter- mine the adequacy of the structure, in its present condition, to serve its intended purposes. The intent of this investigation and report is to determine whether the existing structure can be safely completed to serve its intended purposes according to sound engineering and construction practices. Under the field investigation portion of the report, there are eight evidentiary findings. Because they (and other portions of the report) are in issue, they are repeated below: The foundation seems to have been con- structed according to the architectural plans, based on the test pits that have been excavated at three different locations of the building. Some of the pilaster columns have not been completed or may not have been constructed according to the architectural plans. Some of the pilasters on the north side as well as the south side of the building do not extend to the top of the tie beam. Using an "R" meter we have been able to determine the actual location of the existing bars. Some of the vertical reinforcement is mislocated and other vertical reinforcement is missing. Most of the horizontal joint rein- forcement was placed at approximately 4'-0" O.C. Numerous cracks were found in the walls and slabs. Other cracks or separations exist between the walls and the concrete masonry pilasters as shown on the north wall of the building. Most of the masonry units were constructed as running bond, yet some of the units were constructed as stack bond. Some features of less importance such as the interior stairs on the East end of the building are rotated 90 degrees from their original design as shown on the plans. Other walls and windows may have been added, de- leted or relocated and they no longer conform to the architectural plans. The workmanship in placing the masonry units varies from adequate to far below ade- quate level of today's standards. Most of the walls are in a wavy condition which may require a varying thickness of stucco finishes. Immediately after the foregoing findings, the report contains a section entitled "Analysis" consisting of six paragraphs, with the caveat that such analysis "takes into consideration the lack of inspection." They read as follows: The foundation seems adequate to carry the intended load in the interior locations around the stage and exterior locations as well. The number and location of the existing vertical reinforcement is not adequate enought to carry the intended lateral load and doesn't meet the minimum requirements of the 1979 edition or the 1985 /86 edition of the "Standard Building Code". The quantity and spacing of the existing horizontal joint reinforcement is adequate to meet the minimum area of steel reinforcement specified in the 1985/86 edition of the "Standard Building Code" for reinforced masonry. The height to thickness ratio of most of the masonry walls, interior and exterior, is above the recommended value in the 1979 or the 1985/86 edition of the "Standard Building Code." The beam over the stage area appears to be capable of carrying its intended load. This beam, due to the direction of the joists carries little of the roof load and is loaded nearly to its intended load presently. Little or no deflection is currently visable (sic). The steel joists appear to be capable of carrying their intended load based on data given by Tom Rayburr of Florida Aluminum. There are also five recommendations in the report which follow the analysis. They read as follows: A field survey be implemented to document the as built features of the building. Finish the construction of all pilasters as shown on the architectural plans. Provide a #5 bar in each pilaster, dowel the bottom end into the footing, dowel the top end into the tie beam, then fill with grout. Where the existing vertical reinforcement, whether in term of pilasters or filled cells, exceed the 5'-0" maximum spacing, provide a #5 hook bar at each roof joist location or at 5'-0" maximum spacing where no roof joist exits at exterior walls and at 13'-0" o.c. at interior walls. Weld the bar directly to the plate or to the bar of the tie beam. The other end of the #5 bars will extend to the bottom of the wall and will be drilled and epoxied into the foundation using epoxy non-shrink grout. Form and pour a minimum 8"x8" pilaster around it subject to Architectural approval. Where a pilaster is not feasible, provide a flat A36 steel bar (2"x1/4" minimum) instead of the #5 bar. The flat steel bar shall be hooked top and bottom to the tie beam and footing respectively. Alternatively, instead of the proposed pilasters, place 6x6 W2.XW2.9 W.W.F. flat sheets along both faces of the masonry walls. A minimum of 1" thick non-shrink grout shall be placed on each wall face. The welded wire fabric mesh shall be connected with metal ties thru the masonry wall at 32" intervals. Stucco finishes with standard metal lath shall be provided or as specified by the Architect. The ultimate conclusion of the report reads as follows: Although the building in its present condition does not meet the minimum code requirements, it can be reinforced in an efficient manner that would render it capable of serving its intended function. Criticisms of the Report It should be noted that the agency did not allege nor prove that the scope of investigation and review by respondent in preparing the report was improper or that the client was dissatisfied with his services. Also, the Board does not question the competency of respondent. Rather, the Board contends that respondent was negligent by failing to include greater detail and explanation in the written report. To support this charge the Board presented its consulting professional engineer, James O. Power, and the testimony of Sauerland, the complaining witness and also a professional engineer. Besides himself, respondent presented the testimony of two professional engineers, an architect, and the city engineer. The more credible and persuasive testimony is set forth below. It is true, as respondent points out, that in preparing his report, the agency's consulting engineer did not review the original building plans, make an on-site inspection or read the transcript of the city commission meeting when the report was formally presented to the commission. Thus, the expert was not privy to the many discussions between respondent and the City during the preparation of the report. However, Power considered none of these matters to be essential since his criticisms related only to the actual contents of the report itself. The DPR expert first found that "the scope of the investigation was never clearly defined" in the report. Although the witness did not specifically identify which portion of the report he considered to be deficient, it may be inferred that the witness was referring to the statement of intent (scope of report) recited in finding of fact 12 and the following language found in the first paragraph of the "Field Investigation" section of the report: Our field investigation has been performed for the purpose of establishing whether the structure is constructed according to plans and specification by Stout & Gerald, Inc. Architects of Cape Coral, Florida. According to Power, the report should have included a description of services to be provided by respondent to the client pursuant to their agreement. This would include such matters as whether or not (a) testing would be performed, (b) the structure would be evaluated for code compliance, (c) a design for corrective measures would be furnished, (d) a cost estimate for such modifications would be given, and (e) the investigation, evaluation and recommendations would be based on sound engineering principles. Although the parties clearly understood the scope of the investigation through several meetings and conversations, the written report itself did not adequately memorialize that agreement. 2/ Therefore, respondent is in technical violation of the engineering principle that he use due care in preparing the report. The expert also pointed out that respondent merely stated his assumptions without giving any justification for the same in the report or attached calculations. Those assumptions pertained to the foundation capacity, strength of the reinforcing steel, strength of the concrete, and strength of the concrete block masonry. While DPR's expert found most of the assumptions to be reasonable, the report itself does not state on what basis (e.g., testing, estimates, visual inspection, industry standards, experience, or other factors) the assumptions were made. Unless the logic underlying the assumptions is disclosed, a third party using the report would have no way to ascertain the reliability of the conclusions. While respondent may have orally explained the basis for his assumptions to city officials, and there was no uncertainty on the part of the client, a technical deviation from the due care principle occurred through this omission. Finally, the expert opined that the report contained no logical justification for the conclusions and recommendations. Put another way, the analysis proceeded illogically from the four assumptions in the report. For example, even though the report found a number of deficiencies in the masonry construction, including findings that the work did not adhere to the original drawings and that ratios did not meet building code requirements, the analysis concluded that the masonry work was done in accordance with "acceptable standards under engineering inspection." To this extent, the written report deviated from the engineering principles of logic and clear and precise language, and that it be prepared with due care. Based upon the deficiencies cited in this and the previous two findings, it is found that respondent was negligent in the practice of engineering in that he failed to use due care and to have due regard for acceptable standards of engineering principles. 3/ At hearing, respondent explained the scope of his investigation, gave the bases for the assumptions made in the report and recited the manner in which the conclusions and recommendations were drawn from the facts and assumptions. While these were valid and competent explanations, and had previously been orally given to the City, they were not fully incorporated into the written report. Testimony on behalf of respondent by the project architect established that, from an architect's as opposed to an engineer's perspective, he found the report satisfactory and "in keeping with the standards of other reports" given to him by engineers in the community. However, this testimony has not been accorded the weight given to the testimony of petitioner's consultant. Finally, the testimony of respondent's two engineering experts simply confirmed the fact that no specific written standards exist as to the content of engineering reports, and that in addition to the written report, it is a common practice for an engineer to supplement that report with oral advice to his client. Mitigation In mitigation, it must be noted that respondent's competence as a professional engineer is not in issue. Further, the City was completely satisfied with the report and encountered no problems during the subsequent completion of the building. Indeed, at hearing two city officials expressed satisfaction with respondent's work and the project architect found the report to be satisfactory. Moreover, there were no damages suffered by the client, and the public was not endangered by respondent's misfeasance. Respondent's only fault was in not reducing to writing the additional detail and explanation which he gave to city officials in face to face meetings. Finally, during respondent's twenty-five year career as a professional engineer, he has never been subjected to disciplinary action.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating Subsection 471.033(1)(g), Florida Statutes (1989) and that he be given a private reprimand. RECOMMENDED this 3rd day of April, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of April, 1991.
The Issue Whether or not the Respondent failed to complete two construction projects which he entered into, which conduct constitutes an "abandonment" in violation of Chapters 468.112(2)(h), Florida Statutes (Supp. 1978) and 489.129(1)(k), Florida Statutes (1979).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying arguments of counsel, and the entire record compiled herein, the following relevant facts are found. By its two-count Administrative Complaint filed herein on March 3, 1981, Petitioner, State of Florida, Department of Professional Regulation, Construction Industry Licensing Board, seeks to revoke, suspend or take other disciplinary action against Respondent, Hodges J. Jefferson, based upon two of his contract projects in the State of Florida. Respondent is a certified general contractor who is the holder of License No. CJC0004463. Respondent's last known address is H.J. Jefferson Brothers Construction, Inc., 2250 N.W. 194th Terrace, Miami, Florida 33056. On February 18, 1979, Respondent entered into a contract with Clifton Vaughn to construct an addition to Vaughn's residence located at 3791 N.W. 205th Street, Miami, Florida, 33174, for the total contract price of $11,000.00. As finally agreed upon, the parties entered into a contract for a total price of $16,000.00. 2/ The total area of the addition was approximately 1,200 square feet (Petitioner's Exhibit 5). Respondent obtained a building permit for this project on May 2, 1979, and thereafter commenced work some time during the month of May. The work involved in the addition included work to the rear and west side of Vaughn's residence, including the addition of a bathroom, family room, utility room and dining room with the necessary plumbing and electrical modifications in accordance with the plans and specification. (Petitioner's Exhibit 6) Respondent's last day of work on the project at the Vaughn's residence was November 3, 1979. At that juncture, Respondent had installed some plumbing and completed the duct work for the plumbing; had poured the concrete slab for the addition; erected walls and tie beams to join the existing roof with the addition. The Vaughn's existing roof was left exposed for more than 30 days, during which period Hurricane David caused considerable damage to the plaster and insulation in the roof area of the Vaughn's residence. Respondent visited the Vaughn's residence some time after November 3, 1979, requesting an addendum to the contract and sought an additional $652.00. (Petitioner's Exhibit 7). To provide construction funds for this project, Respondent and Mr. Vaughn set up a joint bank account. Vaughn deposited money into the joint account and Respondent was advanced $3,300.00. During the period of March through November 3, 1979, Respondent was paid $9,961.88, or approximately 90 percent of the contract amount. Respondent ceased work at the Vaughn's residence on or about November 3, 1979, and as of the date of the hearing, had not returned to complete the project. (Petitioner's Exhibits 9 and 10). As stated, the parties entered into the two contracts, i.e., in the amount of $11,000.00 and $16,000.00 based on a $5,000.00 allowance for the Vaughn's modifications to fund the work needed to complete the air conditioning modifications in the new addition. On April 12, 1979, Respondent entered into an agreement with Freddie James Jackson to construct an addition to his home at 3752 N.W. 205th Street, Miami, Florida, in the amount of $10,000.00. The job called for a completion time of 60 days from the commencement of construction. Respondent was advanced one-third of the contract amount of $3,300.00 before he commenced work. (Petitioner's Exhibit 2) Respondent commended work on the project on June 1, 1979, and on November 14, 1979, Respondent ceased all work on this project. At that time Respondent had been paid a total sum of $8,751.03 or approximately 88 percent of the contract price. (Respondent's Composite Exhibit 3) When Respondent ceased to perform work on this project, he had poured the foundation, erected the cinder block walls, completed the rough plumbing and electrical work and started erecting the rafters. The plumbing and the electrical work had to be removed and reinstalled by the Jacksons. The owners also had to obtain a new building permit due to the extended hiatus in construction. When the second building permit was obtained, the inspectors estimated that the project was approximately 45 percent complete. (Testimony of Jackson). Mr. Jackson estimated that Respondent's last day on this project was some time during September, 1979. Mr. Jackson made repeated attempts to contact Respondent after May of 1979, at which time Respondent continued to offer excuses for his failure to appear. At the time of this hearing, Mr. Jackson had paid an additional amount of $3,527.22 toward the completion of the room addition to his home and work remains to finish the addition as planned. (Petitioner's Composite Exhibit 4) Respondent did not appear at the hearing herein nor was any evidence presented to the undersigned on his (Respondent's behalf).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent's Certified General Contractor's License No. CGC004463, be REVOKED. RECOMMENDED this 8th day of February, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 8th day of February, 1982.
The Issue The issue for consideration in this case is whether Petitioner should receive additional credit for his answers to questions 121 and/or 222 on the civil/sanitary engineer examination administered on April 18 and 19, 1997.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency in Florida responsible for the licensing of professional engineers in this state and for the regulation of the engineering profession. Petitioner graduated from the University of South Florida in December 1990, with a degree in geo-technical engineering, a sub-specialty of civil engineering. He is not, nor does he claim to be, a structural engineer. He has practiced in the field of geo-technical engineering since his graduation and has taught soil mechanics at the master’s level at the university. He sat for the professional engineer’s examination administered by the Respondent in April 1997. Thereafter, by grade report dated July 29, 1997, the Department’s Bureau of Testing notified Petitioner that he had earned a score of 69.00 on the examination he had taken. Since a passing score for the examination which Petitioner took is 70.00, Petitioner failed the examination. Petitioner requested a formal hearing to challenge the grading of examination questions numbers 121 and 222, on each of which he earned a score of four. The maximum obtainable score on each question is ten. On question 121, the candidate is given a situation involving a sheet-pile wall section, and is asked to (a) sketch and dimension the earth pressure diagram acting on the wall after the proposed dredging has been completed; and (b) determine the factor of safety against the kick-out after the dredging. Scoring of the Petitioner’s examination was done by the National Council of Examiners for Engineering and Surveying (Council). The Council determined that, with regard to requirement (a), Petitioner’s pressure distribution was of the correct form, but the labeling of the distribution had a major error. Petitioner assumed an incorrect factor which was deemed to be a major error calling for, under the approved scoring plan, a minimum four-point deduction. With regard to requirement (b), Petitioner chose not to solve for the factor of safety as he was required to do. This resulted in a minimum reduction of two additional points. This evaluation was concurred by Mr. Adams, the Board’s expert witness, in his testimony at hearing. Mr. Adams noted that where, as here, the engineer is dealing with soil mechanics, the at-rest conditions are one thing. The active and passive (A and P) conditions are the more dynamic, and here, where the problem calls for removal of soil from in front of a retaining wall, A and P pressures should have been used instead of at-rest pressures. Adams also concluded that Petitioner’s cited authority was not valid in this case. This authority used the at-rest pressure coefficient when all the authorities Mr. Adams could find used the A and P pressure coefficient. Petitioner admits that the coefficients utilized in determining earth pressures are A, P and at-rest (O). In this case, the whole problem must be considered. A tie-back system is presented, and in that case the sheet pile and the tie-back are assumed to hold the soil behind the wall in an at-rest condition so long as the sheet-pile wall does not move or deflect. Petitioner contends that Mr. Adams’ determination that removing the soil would destroy stasis and cause the wall to move is erroneous. In fact, he contends, the sheet-pile wall and the anchor system must move before the Board’s argument holds. He cites an authority in support of his position which was also cited to the Council scorer who, at Petitioner’s request, rescored his answer. The Council official who rescored Petitioner’s answer did not have access to Petitioner’s cited authority but rejected the citation as either incorrectly cited or incorrect in itself. Petitioner’s error called for a four-point reduction in score as to (a). Further, as to requirement (b), Petitioner, though asked to solve for the factor of safety against rotation, chose not to do so. This calls for an additional two-point reduction. Independent review of Petitioner’s answer, including an evaluation of his cited authority, and consideration of the other evidence pertinent to this issue, including his testimony, that of his witness, and the rescoring results by the Council, does not satisfy the undersigned that Petitioner’s answer merits additional credit. The score of four, as awarded, is appropriate. Question 222 deals with a cantilevered retaining wall with a wide foundation and piling in two rows, some in front and some in back, to support it. The candidate is required to determine the total lateral thrust per linear foot acting on the wall in issue; to determine the vertical load on a front row pile; and to explain possible ways that the pile foundation can resist the lateral thrust. According to Mr. Adams, Petitioner incorrectly calculated the lateral load by omitting the proper depth of the wall. With regard to the vertical loading, the Petitioner did not get to the proper vertical load on the front pile but received partial credit for other calculations he performed. As for the last requirement, one part of Petitioner’s answer was incorrect in that he did not explain passive pressures properly. What Petitioner mentioned was incorrect, and he did not mention battering of the piles, which was expected to be noted. According to Mr. Adams, Petitioner got two parts of the question correct, each of which is worth two points. Therefore, he received a score of four points. Petitioner contends that the Board and the Council are being too restrictive in their approach to the problem and not taking into account the whole problem. He claims that though he arrived at the wrong figure in calculating the lateral load, that does not justify his receiving no credit for that segment since the method he used for calculating the thrust was correct. He admits to having erroneously neglected the weight of the soil, but contends that his method of determining the solutions to resist lateral thrust is as good as that of the Board and the Council. Petitioner was given only partial credit for his use of the correct equation to calculate the lateral thrust because he used the wrong depth. His answer to the second part was wrong in that he completely neglected the weight of the soil and calculating the pile load, even though he used the correct figure to multiply the load per foot of the wall. His answer to the third requirement, dealing with lateral resistance of the pile, was insufficient to warrant a full award. Taken together, his answer, in the opinion of the Council’s scorer, merited only an award of four points. Petitioner did not show sufficient basis for increasing this award. The evidence presented by the Board clearly established that both questions in issue provided enough information to allow the candidate to answer them correctly, and both are questions that a candidate for licensure should be able to answer. The scoring plan for these questions was not shown to be inappropriate, and there is no evidence that it was not properly utilized.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order in this matter denying Petitioner additional credit for his answers to Questions 121 and 222 on the April 1997 Civil Engineer Examination. DONE AND ENTERED this 30th day of April, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1998. COPIES FURNISHED: Henri V. Jean 3273 Tanglewood Trail Palm Harbor, Florida 34685 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, Garry Vermaas, Ph.D., P.E., committed the acts alleged in the Administrative Complaint (as submitted in the parties' joint pre-hearing submission).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: At all times material to the allegations in the Administrative Complaint, Respondent was a licensed professional engineer with License No. PE 61163. Respondent was the structural engineer of record for a 13-unit apartment building complex located at 214 Salamanca Avenue, Coral Gables, Florida. As such, on or about January 24, 2007, Respondent signed and sealed the last iteration of structural engineering documents for the project which were filed with the City of Coral Gables, Florida, as part of the application for a building permit. Respondent was the structural engineer of record for the above-referenced project as that term is used in Florida Administrative Code Rule 61G15-31. Petitioner is charged with providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers pursuant to Subsection 471.038(4), Florida Statutes. The Florida Board of Professional Engineers regulates the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes. The Administrative Complaint alleges that Respondent's structural engineering plans were deficient and failed to comply with acceptable standards of engineering practice, citing five instances: The masonry wall on Gridline A at the first level is not adequately designed in that it is overstressed when compared to the Florida Building Code specified wind loads. The block parapet walls at Elevation +49 and +53 are, also, not adequately designed insofar as they are overstressed when compared to the Florida Building Code specified wind loads. Wall Sections A and B on Sheet 1.10 show tapered balcony slabs with a one-inch step. The wall sections are inconsistent with the Typical Cantilever Balcony Detail on Sheet S2.01 and reduce the cover on the tendon to less than one inch required by the Florida Building Code. The placement of reinforcing bars in the bottom of the cantilevered balcony slabs on Sheets S2.02, S2.04 and S2.06 cannot be reasonably determined from the information on these sheets. Sheet S2.10 shows that the stair adjacent to the elevator must rise from the fourth floor at Elevation +35 to the level of the pool deck at Elevation +49. This is a rise of 14 feet and contrasts with the stair at Gridline A which rises from the fourth floor and terminates at the fifth floor at Elevation +45. As a result, the stair adjacent to the elevator requires an additional stair run and a landing neither of which have been addressed in Respondent's design documents. The masonry wall on Gridline A at the first level is not adequately designed in that it is overstressed when compared to the Florida Building Code specified wind loads. On Sheets S1.03 and S1.04 Respondent's structural engineering plans show a concrete masonry wall at Gridline A extending from reference lines 1.1 to 1.8 on the west side of the building; the floor-to-floor distance is 15 feet. The wall is subject to appreciable gravity load from above through vertical connective rebar. Post tension design of the floor system is unique; when the post tension concrete slab deflects, the vertical rebar will transfer the load to the wall in question. As a result of this loading, the subject wall receives loading in more than one direction and should be defined as a main wind force resisting system and should be designed as it is in Respondent's plans. The suggestion by Petitioner's experts that the wall is overstressed by 22 or 65 percent is a result of applying conservative values and failing to include the vertical load on the wall. Within the conservative and non-conservative values allowed by the Florida Building Code, there could be a 400-percent yield difference. The conclusion that the wall is overstressed by 22 or 65 percent does not prove negligence. The block parapet walls at Elevation +49 and +53 are not adequately designed insofar as they are overstressed when compared to the Florida Building Code specified wind loads. Average vertical bar spacing, as used by Respondent in the design of the subject parapet walls, is allowed by the Florida Building Code and is called the "plate" method of design. Petitioner's experts used calculations based on the "strip" method, also allowed by the Florida Building Code. The resulting suggestion that the parapet walls are overstressed by 24 or 62 percent is a result of the differences in analysis of the two methods and the application of conservative values. As stated above, the application of conservative or non- conservative values can result in a 400-percent yield differential. Wall Sections A and B on Sheet 1.10 show tapered balcony slabs with a one-inch step. The Wall Sections are inconsistent with the Typical Cantilever Balcony Detail on Sheet S2.01 and reduce the cover on the tendon to less than one inch required by the Florida Building Code. The subject wall sections are full wall sections and are not inconsistent, but demonstrate, generally, what the wall will look like. The slab design does not remain constant. The Typical Cantilever Balcony Detail on Sheet S2.01 shows that the post tension slab steps down at the top and bottom. The one-inch step-down prevents wind-driven rain from flowing in from outdoors. The resultant one-inch step-down on the bottom of the slab relates to maintaining proper clearance on the tendon. The detail (Typical Cantilever Balcony Detail on Sheet S2.01) demonstrates the one-inch step-down and would not be confused by an experienced post-tension subcontractor. The plans consistently refer to an eight-inch slab. The placement of reinforcing bars in the bottom of the cantilevered balcony slabs on Sheets S2.02, S2.04 and S2.06 cannot be reasonably determined from the information on these sheets. The exact placement of mild reinforcement in post tension design is not important. These plans are adequate in that they label the location of the bars (top or bottom) and clearly describe how the bars should be distributed. This item, according to Petitioner's expert, is not related to design, but to drawing preparation. Testimony revealed that the information used is imported through AutoCad software. These notes are clearly understandable to someone experienced with post tension design and construction. Sheet S2.10 shows that the stair adjacent to the elevator must rise from the fourth floor at Elevation +35 to the level of the pool deck at Elevation +49. This is a rise of 14 feet and contrasts with the stair at Gridline A, which rises from the fourth floor and terminates at the fifth floor at Elevation +45. As a result, the stair adjacent to the elevator requires an additional stair run and a landing neither of which have been addressed in Respondent's design documents. There is a similar staircase from the ground floor to the fifth floor elevation. An ancillary detail, Section G on Sheet S1.13 shows how to get from the fifth floor slab to the pool deck. Section G has three different staircases that show the contractor how the stairs should be constructed. The additional stair run is addressed on this section. The design and drawings comply with Section 1603.1 of the Florida Building Code, which states that "[t]he design loads and other information pertinent to the structural design required by Sections 1603.1. through 1603.1.8 shall be clearly indicated on the construction documents." Drawing presentations and which portions of the structure require more detail, is largely an opinion matter for each engineer to decide as long as he complies with the Florida Building Code. Respondent's expert witness, each of whom had excellent credentials and vast experience with post-tension design of floor systems, opined that Respondent's structural engineering documents for the subject project were not negligent in any way, and Respondent's drawings and calculations conform to acceptable engineering standards and safeguard the life, health, property and welfare of the public. Their testimony on the five alleged areas of negligence and their general conclusions are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Board of Professional Engineers, issue a final order dismissing the Administrative Complaint filed against Respondent, Garry Vermaas, Ph.D., P.E. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 4th day of March, 2009. COPIES FURNISHED: Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 N Monroe Street Tallahassee, Florida 32399-0792 John Jefferson Rimes, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Garry Vermaas Ground Floor Engineering 10125 West Colonial Boulevard, Suite 212 Ocoee, Florida 34761 Patrick Creehan, Esquire Chief Prosecuting Attorney Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267
Findings Of Fact Michael J. Kruger was employed from September 30, 1976 until January 21, 1977 by Structural Stud Products at an hourly wage rate of $6.15 per hour. According to his testimony he was engaged primarily in welding on this job. He was involved in installing steel wall stud units made from 12 to 16 gauge steel in the Fine Arts Building of Hillsborough Community College. Although his primary function was as a welder, he did assist in loading and moving these wall units from the point where they were unloaded on the job site to where they were put in place. Structural Stud Products is a company primarily engaged in the fabrication of steel wall units. They had entered a contract with the general contractor to provide such units for installation in the Fine Arts Building. Shortly after interior construction began, the dry wall subcontractor who was installing these units abandoned this project. Structural Stud Products took over this contract and not only supplied the materials but installed these units. Michael Kruger was hired by the job supervisor and plant manager to assist in the installation of these units. He was hired as and was paid wages as a laborer. According to the Schedule of Prevailing Wage Rates applicable to the construction of the Fine Arts Building at Hillsborough Community College, welders were to receive the prescribed rate for the craft performing the operation to which the welding was incidental. See Schedule of Prevailing Wage Rates. No evidence was received that the installation of steel wall units requires any specific expertise peculiar to any building trade. Testimony was received that such units are installed by carpenters, dry wall installers, and laborers.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the complaint be dismissed. DONE and ORDERED this 2nd day of June, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Harrison Thompson, Esquire Post Office Box 3324 Tampa, Florida 33601 Mr. Michael J. Kruger 160 East Floribraska Avenue Tampa, Florida 33603 Mr. Luther J. Moore Department of Commerce Division of Labor 1321 Executive Center Drive East Tallahassee, Florida 32301
The Issue The issues in this case are whether the violations alleged in the Administrative Complaint occurred, and whether the Respondent should be fined $5,000.
Findings Of Fact Washington Manor is a skilled nursing home licensed by the Department of Health and Rehabilitative Services. It expanded its existing facility by the construction of a new wing with 15 additional beds. Approval of the construction of the addition was granted by the Petitioner Department as indicated by Exhibit 5. The addition was inspected by the Department's Medical Facility Architect on October 4, 1979. At that time the Department's architect discovered that several of the beds in the new facility were being used. In addition the architect discovered several construction deficiencies. The architect discovered that the partitions designed to be fire resistant and smoke proof had many holes in them which would have permitted smoke to penetrate these walls, which were to be constructed as barriers. The architect discovered that smoke dampers on the ducts were not properly secured. Unsecured, such dampers can be knocked aside by the forces generated in a fire. The architect discovered that "tents" (ventilated and insulated enclosures) had not been constructed over recessed lighting fixtures in a manner to prevent fire from penetrating the fire resistant ceiling tile. In addition to these major deficiencies listed above, the bathrooms did not have bedpan flushing devices, the tamper switch on the fire alarm was not functioning properly, double doors did not have magnetic door closures, and the air conditioners in the patients' rooms did not have their vents locked in the open position. The Department's architect offered uncontroverted and unrebutted testimony that the conditions in the foregoing Paragraphs 3, 4, 5 and 6 violated the provisions of the Southern Standard Building Code. The deficiencies described in Paragraphs 3, 4 and 5 directly related to the safety of the residents notwithstanding the prohibitions of these conditions by the code. An October 8, 1979, a second inspection was conducted by a Department administrative inspector based on the architect's report of premature occupancy. This inspection revealed that ten of the 15 new beds were occupied and had been occupied for a total of more than 55 patient days without proper licensure, which includes the period the safety deficiencies existed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the $5,000 fine be levied against the Respondent, Washington Manor Nursing and Rehabilitation Center. DONE and ORDERED this 2nd day of July, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold L. Braynon, Esquire Department of HRS 800 West Oakland Park Boulevard Fort Lauderdale, Florida 33311 Myron J. Sponder, Esquire Washington Manor Nursing and Rehabilitation Center 4200 Washington Street Hollywood, Florida 33021
