Findings Of Fact The Respondent Dennis Soucek is a licensed dentist in Florida. On April 11, 1981, Ms. Elaine Yarbrough consulted the Respondent Soucek concerning dental treatment for extreme protrusion of her four front teeth. The Respondent and Yarbrough discussed various treatment plans including fixed and removable prostheses and orthodontics. On June 23, 1981, the Respondent Soucek extracted Yarbrough's four protruding teeth and provided her with a temporary bridge. The Respondent intended for Yarbrough to wear the temporary appliance until her gums had receded sufficiently to receive a permanent fixed bridge. In normal cases, a six-week period is advised after extraction and before impressions are taken for a permanent bridge to allow gum recision to take place. In this case, however, the Respondent allowed a period of approximately three months to transpire before the permanent impression was made. The added period of time was taken by the Respondent as a precautionary measure due to the extreme protrusion which was present in Yarbrough's mouth prior to the extractions. However, notwithstanding the three-month period, Yarbrough's gums continued to recede after the impressions were made and the bridge was installed, which caused a pronounced ledge to form around the gum line and the pontics. Approximately two months after permanent placement of the bridge, Yarbrough returned to the Respondent's office and asked him to solve a problem that had developed of air entering under her bridge. The Respondent attempted to solve the problem by using a porcelain repair kit. When the Respondent could not get the kit to properly bond to the teeth, he suggested to Yarbrough that more time be allowed for the unforeseen shrinkage to end before further repair attempts were made. The Respondent never saw Yarbrough again after this final visit. The Petitioner's expert, Dr. Mervyn Dixon, D.D.S., who examined Yarbrough, was primarily concerned that the pontics installed by the Respondent showed poor adaption to tissue in that the gingival facial aspect of the pontics exhibited the "heavy ledge" referred to previously and that the labial tissue surfaces of the central pontics were pressing against the incisive papilla to the extent that there was a blanching due to lack of circulation. Additionally, Dr. Dixon testified that it is not acceptable to use filling material to repair a new bridge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Board of Dentistry finding the Respondent Soucek guilty of violating Section 466.028(1)(y), Florida Statutes (1981) in his treatment of the complainant, placing him on probation until such time as he furnishes evidence of completion of thirty (30) hours of continuing education in bridge work, and imposing a $1,000 administrative fine. DONE and ORDERED this 24th day of June, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 24th day of June, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hugh Maloney, Esquire PATTERSON & MALONEY 790 East Broward Boulevard Post Office Box 030520 Fort Lauderdale, Florida 33303 Fred Varn, Executive Director Florida Board of Dentistry Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. CASE NOS. 0024080 (DPR) 82-2947 (DOAH) DENNIS SOUCEK, D.D.S., Respondent. /
Findings Of Fact On or about December 16, 1985, Petitioners submitted an application requesting qualifications in five major classes of work and two incidental classes of work. At the hearing, qualification in cement paving was not pursued. The Department denied the applications for qualification to bid on contracts for Minor Bridges, Portland Cement Concrete, Hot Plant-mixed Bituminous Base and Surface courses, and the two incidental classes of fencing and grassing, seeding and sodding. Petitioner here contests the Minor Bridge, Hot Plant-mixed Bituminous Base and Surface courses and the two miscellaneous categories. Superior Paving has been in the road building business for many years and the sole basis for denying qualification for Hot Plant-mixed Bituminous Base and Surface courses is that Superior does not own an asphalt plant. During the years Petitioner has worked in road construction for DOT its work has been satisfactory, contracts have been completed on time, and there has been no default. Petitioner has the financial ability to perform the work for which qualification is requested and has experienced personnel necessary for this work. With respect to construction work on minor bridges, Petitioner's general manager and superintendent both have extensive experience in this work area. During the past two years, Petitioner has done no work on DOT projects as the result of a two year suspension for a contract crime. Prior thereto on DOT construction involving minor bridge work in which Superior was the prime contractor, this work was subcontracted out to a contractor specializing in bridge construction. However, Superior has the resources to obtain all equipment needed for minor bridge work. Also Petitioner has been the successful bidder on jobs involving fencing as well as grassing, seeding and sodding. Petitioner has used this type work to meet its quota for subcontracting at least ten percent of the job to minority and female subcontractors. On one occasion when the sodding subcontractor failed to complete the project, Petitioner used its own personnel and equipment to do so. Petitioner's request for qualification for these incidental classes was denied because its application failed to show that the company accomplished fencing, grassing, seeding and sodding with its own forces and equipment. (Exhibit 14.) Most of the evidence submitted in these proceedings involved the denial of qualification for the type work that has been Petitioner's primary category for many years, viz. asphalt paving. The sole reason for denying Petitioner qualification in this class of work is that Petitioner does not have its own asphalt plant (Exhibit 14.) This requirement imposed by Respondent is a recent one which was placed into effect in 1985 following the amendment to Rule 14- 22.03 F.A.C. That amendment added "and the adequacy of equipment to perform the specific classes of work." At the time this change to the rule was made DOT was applying the policy of requiring a contractor to own an asphalt plant in order to qualify for this work class. When asked why this unwritten policy was not included in the rule when amended in 1985, the witnesses involved in incorporating the change involving equipment into the rule replied he could not answer that. The policy of DOT that in order to qualify for asphalt paving the bidder must own an asphalt plant has general applicability and has been applied during the past year to all contractors bidding on DOT road projects. DOT personnel who testified in these proceedings stated the purpose of adding the phrase regarding having the necessary equipment to the requirement for qualification, was to bring the rule more in line with the statutory provisions. The adverse publicity DOT received in recent years because of contractor delays in completing projects and deficiencies in some of the work performed resulted in the tightening of the requirements for qualification. Two contractors in particular were late in completing contracts on which they were successful bidders and part of the delay was due to their inability to get the necessary road paving material. However, both of these contractors owned asphalt plants. One had delays in getting a permit from the Department of Environmental Regulation to erect a plant near Destin, Florida, and the other had a falling out with his supplier and could not get the required material. In neither of these cases did the ownership of an asphalt plant alleviate the problem. No evidence was presented showing that a delay in the completion of a project was due solely to the failure of the contractor to have his own asphalt plant. Several asphalt producers submitted letters to the effect that they had supplied paving material to Petitioner for many years and would continue to supply him as much as he would buy. One plant owner testified that he had been in the production and laying of asphalt pavement for many years and much preferred to have the role only of supplier. He also testified that most producers felt the same way. There is no policy or rule requiring contractors who bid on jobs requiring the use of road aggregates to have their own rock quarry in order to qualify for this work class. Petitioner has the necessary equipment to transport mix from the plant to the job site and to install the mix at the job site. Hot Plant-mixed Bituminous Base and Surface courses can be successfully trucked approximately 60 miles from the plant. Accordingly, under DOT's policy, a successful bidder will frequently have to erect an asphalt plant near the job site. This will require him to obtain permits and negotiate the environmental problems associated therewith. The effect of not being qualified for Minor Bridge and Hot Plant-mixed Bituminous classes is that Petitioner is not qualified to bid as a prime contractor when one or more of these classes, in the aggregate, comprises fifty percent or more of the work.
The Issue The issue in this proceeding is whether the placement of a window in a sleeping room at Elsie Miller Convalescent Home, Inc., d/b/a Elsie Miller Manor (Elsie Miller), an Adult Congregate Living Facility, violates Chapter 400 or Chapter 553, Florida Statutes. This case came to hearing based upon a peculiar set of circumstances. Initially on December 12, 1984, the Department of Health and Rehabilitative Services (HRS), Office of Licensure and Certification, cited Elsie Miller for a deficiency, stating that "Bedroom No. 3 is not provided with a window to the outside for ventilation and light." By letter dated February 11, 1985, Elsie Miller disagreed with the deficiency, citing reasons for the disagreement, and requested a formal hearing on the deficiency. On February 28, 1985, HRS sent a letter to Elsie Miller reiterating the deficiency and denying a waiver for the window in question. Therein, HRS told Elsie Miller that it could appeal the deficiency determination. By letter dated March 12, 1984, Elsie Miller requested a hearing to appeal the decision in the February 28, 1985, letter, without specifying whether it appealed the actual finding of deficiency or the denial of a waiver. The matter was then forwarded to Division of Administrative Hearings for assignment of a Hearing Officer. At no time did HRS issue a Notice of Violation or any other document that would serve as an administrative complaint, nor did HRS seeks to impose sanctions for the alleged violation. Presumably, an administrative complaint would have eventually been issued if Elsie Miller had done nothing to correct the alleged deficiency. Under this set of circumstances, a formal hearing was convened, after which the parties recognized and agreed that the matter was in fact not ripe for hearing. However, to avoid the time and expense of gathering the witnesses and parties at some future time, the parties instead stipulated that the formal hearing should proceed as if an Administrative Complaint has been filed, that HRS would take final agency action based on this Recommended Order, and that this proceeding would conclusively address the issue of whether the window complies with Chapter 400 and Chapter 553 as incorporated by reference in Section 400.444. Petitioner presented the testimony of Jim Valinoti, together with one exhibit. Respondent presented the testimony of Earnest J. Miller, Jr., together with three exhibits. The parties submitted proposed findings of fact and conclusions of law as permitted by law. All proposed findings of fact and conclusions of law have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the competent or credible evidence.
Findings Of Fact Elsie Miller Convalescent Home, Inc., d/b/a Elsie Miller Manor, is the owner and licensee of a licensed Adult Congregate Living Facility (ACLF) located at 1914-21st Street, Vero Beach, Florida. It has been so licensed since 1974 and houses twenty residents. In 1984 Elsie Miller remodeled its facility by enclosing a screened porch to make a dining room and adding a new screened porch outside of the dining room. A building permit was obtained from the City of Vero Beach. Pursuant to that building permit, the City of Vero Beach approved the plans and inspected the construction to determine whether the project was in compliance with the building codes of the City of Vero Beach. The window in Bedroom #3 previously opened onto the screened porch. After remodeling it opens into the dining room a few feet from the new screened porch. ACLF facilities must have their licenses renewed yearly. Elsie Miller's license was renewed in October, 1984, after the remodeling was completed. On December 12, 1984, Jim Valinoti, a Fire Protection Specialist for HRS, conducted an annual licensure survey. He cited Elsie Miller for a deficiency for the window in Bedroom #3 because it did not open "to the outside for ventilation and light." This allegedly violated Section 2001.1 of the applicable building code. Mr. Valinoti's interpretation of Section 2001.1 as it refers to windows opening to an approved open space is that the window must open into a space open to the outside. Bedroom #3 has two exit routes in addition to the window, but has only the one window which opens onto the dining room. In order to move the window to open to the outside, Elsie Miller would have to move two patients, tear out walls and reshape two bedrooms. There is adequate light and ventilation with the current placement of the window. The dining room is connected to the screened porch by an entire wall of glass and sliding glass doors. The window is approximately three feet from the plate glass window and light and ventilation are adequate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Final Order determining that Elsie Miller Convalescent Home, Inc., d/b/a Elsie Miller Manor is not deficient and is not in violation of Section 2001.1(b) of the Southern Building Code as it relates to the window in Bedroom #3. DONE and ENTERED this 12th day of September, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1985. COPIES FURNISHED: K. C. Collette District IX Legal Counsel 111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 33401 Charles E. Garris 2205 14th Street Vero Beach, Florida 32960 Leslie Mendelson, Agency Clerk Assistant General Counsel- Department of HRS 1323 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301 David Pingree, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Has Dr. Steinberg been guilty of malpractice; willful negligence; or misconduct in his business affairs which could bring discredit upon the dental profession contrary to the provisions of Section 466.24, Florida Statutes, (Supp. 1978).
Findings Of Fact Dr. Edward M. Steinberg is licensed by the Board of Dentistry to practice dentistry in `he State of Florida. He has been so licensed since February 1973. Mrs. Elizabeth Betzler Mrs. Betzler was a dental patient of Dr. Steinberg between October 1978 and July 20, 1979. During that time he performed a variety of dental treatments for her including equilibration, two cores, an extraction, periodontal care, and the construction and placement of a 3-unit temporary acrylic bridge. This treatment extended over at least 10 to 12 long office visits. The 3-unit acrylic bridge was cemented in the patient's mouth on May 14, 1979. Mrs. Betzler was led to believe by Dr. Steinberg that the acrylic bridge was the permanent bridge for which she had paid $800.00. 1/ At the final hearing Dr. Steinberg testified that he never told Mrs. Betzler that tie acrylic bridge was permanent. This testimony is not accepted as credible. While Dr. Steinberg and Mrs. Betzler had originally agreed that he would construct for her a 5-unit porcelain on on gold bridge, Dr. Steinberg later told her that the acrylic bridge was even stronger and more satisfactory than the gold one. Subsequent to its installation, Mrs. Betzler's bridge broke numerous times. She had to frequently return to Dr. Steinberg to have it repaired. Acrylic bridges are not of a permanent nature. They are used to cover teeth previously prepared for the later installation of a permanent bridge. An acrylic bridge is an interim measure until the permanent one is prepared by a laboratory. This preparation usually takes no longer than one month. Even though Dr. Steinberg installed Mrs. Betzler's temporary bridge in May of 1979, by July, 1979, when she last saw him, he still had not constructed a permanent bridge for her. Mrs. Betzler ceased going to Dr. Steinberg for treatment in July, 1979, because of what she believed to have been rude treatment of her daughter Ms. Mary Jo Holland by Dr. Steinberg and his receptionist. For all of her treatment by Dr. Steinberg, Mrs. Betzler paid a total of $1,115.00. Three hundred fifteen dollars was for the cores, equilibration, periodontal treatment, etc., and $800.00 was for her permanent bridge. Dr. Steinberg told Mrs. Betzler that he would not install her bridge until she paid him in full for it. She made the last payment on May 14, 1979. Dr. Steinberg's request that a patient pay his full fee in advance before the patient's treatment would be concluded is contrary to the general practice of dentistry in the Fort Lauderdale area where Dr. Steinberg has his office. Mary Jo Holland Ms. Mary Jo Holland was a patient of Dr. Steinberg's during the same time he treated her mother. She was initially diagnosed by Dr. Steinberg to need a root canal on tooth number 20 and a crown on tooth number 19. Because the prescribed treatment was more than she could afford to pay at once, she and Dr. Steinberg agreed to treat tooth number 20 first. It was excavated and a temporary filling was installed. An appointment to place a permanent filling in that tooth was made for sometime in July 1979. Shortly before that scheduled appointment, the temporary filling chipped and Ms. Holland secured a special appointment on July 17, 1979 to have it repaired. This special appointment was scheduled through Dr. Steinberg's mother, who is also his receptionist. Mrs. Steinberg never informed Dr. Steinberg on July 17, 1979, what treatment Ms. Holland wanted, and apparently he never inquired. Upon her being seated in the dental chair Dr. Steinberg began to treat Ms. Holland without inquiring of her what treatment she required. Instead, he assumed that she was there to have the crown placed on tooth number With that aim in mind, Dr. Steinberg excavated tooth number 19 in preparation for its crown. During the course of the appointment Ms. Holland learned that the chipped filling on tooth number 20 was not being repaired. This discovery lead to an argument between her and Dr. Steinberg and Mrs. Steinberg. Because of the argument Ms. Holland fled Dr. Steinberg's office in tears. The chip on tooth number 20 was never repaired by Dr. Steinberg.
Recommendation Based on the foregoing findings of fact and Conclusions of Law, it is RECOMMENDED: That the Board of Dentistry find the Respondent guilty of unprofessional conduct as set forth above and enter a final order suspending his license to practice dentistry in the State of Florida for a period of two (2) years; provided however; that the last year and 11 months of the suspension be stayed under the following conditions: that Dr. Steinberg return the $800.00 fee to Mrs. Betzler which she paid him for a 5-unit porcelain on gold bridge, that Respondent during the next two (2) years from the date of the final order complete at least 48 hours of continuing dental education. The Respondent shall propose a schedule of courses to the Board in order to obtain its prior approval for such courses, that Dr. Steinberg appear before the Board at its meeting immediately prior to the conclusion of his probationary period to certify that he has complied with the terms of the Board's final order. DONE and RECOMMENDED this 4th day of February, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 4th day of February, 1981.
The Issue The issue for resolution in this proceeding is whether Petitioner is entitled to additional credit for his response to question 124 in the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 30, 1998, by the National Council of Examinees for Engineers and Surveyors (NCEES).
Findings Of Fact Petitioner is a candidate for licensure as a professional engineer. On October 30, 1998, Petitioner sat for the Principles and Practice of Engineering portion of the examination in civil engineering. This is a national examination developed, controlled, and administered by the NCEES. Respondent is a Florida non-profit corporation created by Section 471.038, Florida Statutes, to provide administrative and other services to the Florida Board of Professional Engineers (Board). Petitioner was notified in January 1999, that his raw- score on the examination was 45, which converted to a full score of 67, was below the required passing score of 70. He contested the score and asked for a rescore of his responses to examination questions 123 and 124. NCEES reviewed the responses and awarded two additional points for question 123; it awarded no additional points for question 124. The rescore resulted in a raw-score of 47 and a full score of 69, still short of a passing grade. Petitioner then requested a formal administrative hearing and, as stated above, confined his challenge to his score on question 124. Question 124 involved computations for a detour roadway during a bridge replacement project. The question had four parts, thus requiring four computations (a-d). Segments of the detour were expressed in metric lengths (meters) in the question. A beginning station was described as 5 + 000.000. The question required that all computations be carried out to the appropriate significant digits. As described by the scoring plan for question 124, a perfect score was 10 points for an "exceptionally competent" response. The next highest score was 8 points for "more than minimum but less than exceptional competence," described as: Failure to provide answers to the required accuracy and a correct solution to requirements (a)-(d) OR an incorrect solution to one of the requests (a)-(d) with all answers within the required accuracy. Failure to provide the answers to the required accuracy will result in a deduction of two points at any level of scoring. (Respondent's Exhibit no. 8) The NCEES scorers awarded Petitioner a "6" for question 124, both initially and upon his requested review. Six points indicated "minimum competence," described as: Demonstrated a competent knowledge of reverse curves with a correct solution to at least two of the requirements meeting the required accuracy or a correct solution to at least three of the four possible requirements but answer(s) fail to meet the required accuracy. (Respondent's Exhibit no. 8) A solution is the methodology or process employed to reach a numerical result or answer in the examination problem, according to the competent credible testimony of Petitioner's experts. Those experts would have scored Petitioner's responses to question 124 as an "8" or "9". On rescoring, the NCEES score's comments in assigning a score of "6" were: SCORER'S COMMENTS: Requirement (a)-Failed to meet accuracy requirements of +/-0.015m. Requirement(b)-Decimal error was made. The station was in km and the curve length was in meters. Requirement(c)-Same error as in Requirement (b). No points were deducted for this error. Requirement (d)-Solution is correct. Minimum competence was shown by this solution. The grading process for the portions of the examination of which question 124 was a part was subjective within the guidelines provided by NCEES. Different scorers could award different points for the same answer. Petitioner's experts and Respondent's expert, all competent, credible witnesses, differed as to the score they would award. Petitioner's response to (a) of question 124 was not accurate within +/- 0.015m. That error alone would have resulted in a 2-point penalty. However, he also mis-read the initial stationing provided in the problem statement, resulting in inaccurate answers for (b) and (c). A correct solution generally includes the appropriate use of available data. In this case Petitioner's error in reading the correct station position was a technical error only and was caused by a misleading expression of the position in the question itself. His solutions to (a)-(d) were otherwise correct. In Florida, the only engineers who use the metric system are consultants for the Florida Department of Transportation (FDOT) and even that agency is phasing out the use of metrics. The use of metric measurements is not the standard of practice for Florida Professional Engineers. Out of the 30 projects that Respondent's expert has done since he was licensed, only one involved the use of the metric units. J. Keith Dantin, P.E., one of Petitioner's experts, has never in his 14 years of experience worked on a roadway or surveying problem in metric units. The Candidate Information Booklets provided by the Respondent to the examinees are conflicting and confusing. The February 1998 version states: "Examinees should be prepared to solve bridge problems using either metric or English units of measure. All other problems are in English units." (Petitioner's Exhibit No. 1). The October 1998 version states under the category Structural Design Standards: "All problems are in English units" (Respondent's Exhibit No. 3, boldface in original). When FDOT uses metric units it still expresses those units in English terminology. Thus, where question 124 positioned the beginning station at 5 + 000.000, the English translation would have been 50 + 00. It is evident that Petitioner read the station to be 5 + 00, missing one of the O's; if he had used the 5 + 000, or if the question had expressed the position at 50 + 00 (the English terminology used by the FDOT), all of Petitioner's answers would have been correct and his solutions would not have included the merely mechanical error of utilizing the wrong beginning station position. While he felt that he, personally, would understand the problem, Respondent's expert agreed there might be a bit of confusion. Respondent's expert was candid and credible but his professional experience was substantially less than Petitioner's experts, who also were candid and, on balance, more competent. Petitioner should have been scored an 8 on question 124. His solutions were basically correct and his answers were off merely due to the confusing expression of the beginning station. In real practice his error would have been caught before it reached the field and the error in no way betrayed a lack of fitness to practice as a professional engineer.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner's challenge to his score on question 124 be sustained and that his score be upgraded by 2 points, from a "6" to "8". DONE AND ENTERED this 3rd day of November, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1999. COPIES FURNISHED: William H. Hollimon, Esquire Ausley & McMullen, P.A. 227 South Calhoun street Tallahassee, Florida 32302 Jeff G. Peters, Esquire Cedar Woods Office Center 1266 Paul Russell Road Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the construction activities undertaken by Respondent at the home of George Scantland which lies seaward of the Sarasota County Coastal Construction Control Line constitute a violation of Section 161.053(12), Florida Statutes, and Rule 16B-33.004(4), Florida Administrative Code, and, if so, should an administrative fine be assessed against the Respondent.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. George Scantland owns a single-family home on Casey Key in Sarasota County, Florida, which lies seaward of the Sarasota County Coastal Construction Control Line ("CCCL"). Scantland contracted with the Respondent to perform certain construction activities at his home. At the time Respondent entered into the contract, Garry Battaglia was President of the Respondent corporation. On February 13, 1990, the Respondent requested a consultation from the Department regarding the proposed construction activities at Scantland's home. The Respondent submitted a plan of the proposed construction along with the consultation request. At the time of the consultation request, Scantland's single-family home consisted of an on-grade slab on the ground floor level and an elevated second floor with a wooden cantilevered deck on the north and south sides of the property. The consultation request and plan indicate that the Respondent wished to construct a third-story addition including a cupola above the existing second floor, an elevator within the existing wall on the south side of the home, and an enclosure for stairs outside on the existing south side wall. On June 4, 1990, a Department engineer responded to the consultation request in a letter notifying the Respondent that the proposed third-story addition, the cupola and the elevator qualified for an exemption. However, construction of the stairwell enclosure did not qualify for an exemption pursuant to Section 161.053(12), Florida Statutes, because the enclosure modified the existing structure outside the limits of the existing foundation. And, pursuant to Rule 16B-33.004(4), Florida Administrative Code, a permit was required for the proposed stairwell enclosure because the enclosure constituted an addition to a major structure proposed above a preexisting concrete deck. On October 18, 1990, the Department's area inspector visited Scantland's home, prepared a site inspection report, and took photographs. The site inspection report indicates that Respondent was engaged in construction activities at Scantland's home and requested comment from the Department's staff as to whether the work was exempt or required a permit. The first photograph (Exhibit 2A) taken on October 18, 1990, by the area inspector indicates that the existing concrete deck on the ground floor of the north side of the house had been drilled and rebar had been inserted and that concrete blocks were being placed at the bottom of the drills and rebar locations. Another photo (Exhibit 2C) taken on October 18, 1990, by the area inspector depicts the southern wall of the house with temporary shorings supporting the remains of the second floor wooden deck located on top of the preexisting concrete deck. The photo shows that wooden posts in the concrete deck, which had supported the second floor elevated wooden deck, had been flush cut to the ground. After reviewing the site inspection report and photographs, the area engineer in Tallahassee asked the inspector to revisit the site to gather further information regarding Respondent's construction activities. The area inspector revisited the site on October 24, 1990, and prepared a Warning Notice and Violation Report which he hand-delivered to an employee of the Respondent on the job site. The area inspector also took additional photographs (Exhibits 5A-5C) during this visit. The Warning Notice was issued for the placement of drilled rebar and block columns atop an existing concrete slab and placement of a tie-beam system atop the block columns. The Warning Notice put the Respondent (owner's agent) on notice that a violation has possibly occurred and instructed the Respondent to stop construction pending a determination from the Department's Tallahassee office. The Violation Report, which begins the formal entry into the violation process, was issued to both Scantland and the Respondent for the construction of new perimeter block walls atop an existing ground floor concrete deck seaward of the CCCL without obtaining a permit from the Department. The area inspector's initial determination that Respondent's construction activities constituted a statutory violation was confirmed by the Department's engineering staff in Tallahassee. The photographs (Ex. 5A - 5C) taken by the area inspector on October 24, 1990 demonstrate that even after receipt of the Warning Notice, the Respondent continued construction at Scantland's home. The first photograph (Ex. 5A) taken from the north side of the house, shows that placement of the rebar and columns had been completed and a beam had been constructed across and underneath the existing wooden deck on the second floor. A second photograph (Ex. 5B) taken from the south side of the house, shows the new columns and new tie-beams constructed atop the preexisting concrete deck. On November 16, 1990, the area inspector conducted a follow-up inspection of the site, prepared a site inspection report, and took photographs (Ex. 7A -7B). The site inspection report confirms that Respondent was still engaged in construction activities at the site. The report indicates that the area inspector spoke with Garry Battaglia on the site and that Battaglia planned to continue construction until a stop work order was received. Battaglia advised the area inspector at this time that he was applying for a permit for the work. The first photograph (Ex. 7A) taken by the area inspector on November 16, 1990 is an exterior view of the south side of the house which shows that the wall atop the preexisting concrete deck on the southern addition was completed. The second photograph (Ex. 7B) shows the interior of the southern wall where construction of the second story was taking place over the new column wall and tie-beam system built atop the preexisting concrete deck. The Respondent received a copy of a Notice of Apparent Violation of Section 161.053(2), Florida Statutes, dated November 20, 1990, issued by the Department to Scantland for unauthorized construction/excavation seaward of the Sarasota County CCCL. The Notice advised the parties to stop construction activities pending compliance with the law. On December 10, 1990, the Department received an after-the-fact permit application, plan of construction, and survey of the property from the Respondent as agent for Scantland. The plan of construction accurately depicts the structure which is currently on the property, as modified by the Respondent. The completed construction is totally different from the construction activities described in Respondent's consultation request of February 13, 1990. The consultation request submitted to the Department by Respondent in February, 1990 did not indicate that any construction would occur on the north or west side of the structure above the preexisting concrete deck or that the elevator would be constructed on the southwest corner of the home outside the existing wall or that an enlarged garage/storage area would be constructed. All of the above were ultimately constructed by Respondent. The survey of the property, dated March 23, 1990, shows that there was preexisting concrete deck on the ground floor level and a wooden deck on the second floor and that the concrete deck was a separate entity from the strip footing supporting the preexisting structure and that there was no enclosed space above the preexisting concrete deck. On December 19, 1990 the area inspector returned to the site and took additional photographs (Ex. 10A - 10C) and filed a site inspection report. The Respondent continued to engage in construction on the house even after receipt of the Warning Notice and Notice of Apparent Violation. The construction on the south and west sides of the house were never completed, there was a new corridor wall between the elevator shaft and the interior wall of the house, a new column and some new slabs on the ground outside the preexisting foundation of the house. On January 2, 1991, in response to the after-the-fact permit application, plan and survey filed by the Respondent, the Department staff advised the Respondent by letter that the application was incomplete and told the Respondent to stop any further construction activities on the site that had been identified as requiring a Department permit. On January 10, 1991, the Department received from Respondent another plan of the existing structure entitled "Existing First Floor Drawing" drawn on October 25, 1990. The drawing indicates that there was open lattice on the south side of the house; and, the drawing refers to the concrete on the north and south sides of the home as "concrete walk". On January 17, 1991, the area inspector visited the site again, took additional photographs (Ex. 12A -12C) and filed a site inspection report. Again, it was evident that Respondent continued construction on the house despite receipt of the Department's notice of January 2, 1991 advising Respondent to cease any further construction activities. The Respondent received a Notice of Violation, Cease and Desist Order issued by the Department on January 17, 1991 for unauthorized construction seaward of the CCCL. On July 22, 1991, the Department issued Permit No. ST-807 ATF CF to the Respondent as agent for Scantland, authorizing the after-the-fact activities and the proposed minor structures with the condition that the violation would be addressed by the Department through a separate agency action. The generally-accepted definition of "foundation" states that a foundation is the support part of a structure and is restricted to the structural member that transmits the superstructure load to the earth. The strip footing, or wall footing, directly beneath Scantland's home transmits the load of the superstructure to the ground and thus constitutes the foundation of the preexisting structure. The footings on the north and south sides of the home underneath the concrete deck did not support the preexisting structure but rather only supported the preexisting second story wooden deck. As such, the footings below the concrete deck did not constitute part of the foundation of the preexisting structure. The construction at Scantland's home constitutes construction outside the foundation of the Scantland's home and additions to the Scantland's home above the preexisting concrete deck. Respondent knew, or should have known, that a construction permit was required for the construction activities at the Scantland home based on the Department's response to the consultation request. Respondent's continued construction activities at the Scantland home constitutes a violation of the statutes and rules and was intentional in that the Respondent continued the construction activities at the Scantland home despite the repeated notices and warnings by the Department to cease construction until the matter was resolved. The Respondent was agent for Scantland and responsible for obtaining all necessary permits. The construction activities conducted at the Scantland home by the Respondent does not come within the exemption provided for in Section 161.053(12), Florida Statutes, and Rule 16B-33.004(4), Florida Administrative Code, adopted in accordance with the Department's statutory authority. Therefore, the construction was a violation of the statute and Department rule in that Respondent failed to obtain a permit before beginning construction. And, such violation could subject the Respondent, as the owner's agent responsible for obtaining the permit, to a possible assessment of an administrative fine pursuant to Section 161.054, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED: That the Department enter a final order assessing an administrative fine in the amount of One Thousand Five Hundred and No/100 Dollars ($1,500.00) against Respondent. In making this recommendation, I am mindful of Respondent's repeated failure to comply with the repeated notices and warnings without any attempts to resolve the matter. Another basis for the fine is to ensure immediate and continuous compliance in the future as set forth in Section 161.054(4), Florida Statutes. DONE AND ENTERED this 28th day of October, 1992 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 28th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2292 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner The following proposed findings of fact are adopted as modified in substance in the Recommended Order. The number(s) in parenthesis is the Finding of Fact which so adopts the preceding proposed finding(s) of fact: 1-9(1-9 respectively): 10(10-11); 11(12); 12(13); 13(13, 14); 14(15); 15(16); 16(17); 17(18-20); 18(21); 19(22); 20(23-24); 21(25); 22(26); 23(27); 24(28-29); 25 (30); 26-28(31); 29(32); 30(33); 31-33(34); 34(35); 35(36); 37(37); 38(38-39); 39(40); and 40-42(41-44). The Department's proposed finding of fact 36 is covered in the Preliminary Statement. The Respondent did not file any proposed findings of fact. COPIES FURNISHED: Lanette M. Price, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 Garry Battaglia, Qualified Representative G & R builders of Distinction, Inc. 107 Corporation Way, Suite B Venice, Florida 34292 Virginia B. Wetherell Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, Florida 32399-3000
The Issue Respondent's alleged violation of Section 466.24(3)(a), Florida Statutes.
Findings Of Fact Dr. Albert Leo Vollmer is registered as a dentist with the Florida State Board of Dentistry, license no. 1437, and practices dentistry at Satellite Beach, Florida (Testimony of Mullins). On July 19, 1973, Allen M. Dingman made application to the Veterans Administration for medical benefits consisting of dental treatment (Petitioner's Exhibit 3). Authorization was given by the Veterans Administration for the requested treatment and Mr. Dingman sought the services of the Respondent. Respondent submitted a treatment plan to the Veterans Administration which was approved. Respondent thereafter provided dental services to Mr. Dingman and, in October, 1973, billed the Veterans Administration for the completed treatment. On October 18, 1973, payment in the amount of $503.00 was approved and paid to the Respondent by the Veterans Administration. This included payment for providing a 3/4 crown on tooth 20 in the amount of $115.00, a full gold crown on tooth 19 for $110.00, and a gold pontic on tooth number 18 for $90.00 (Petitioner's Exhibit 4). In April, 1974, Mr. Dingman visited Dr. Robert B. Downey, D.D.S., concerning a bridge which Respondent had provided him to replace the second molar (tooth number 18), which bridge Dingman had subsequently lost. He asked Dr. Downey what the cost would be to remedy his problem and informed him that the Veterans Administration had paid for the other work. Dr. Downey thereupon contacted the Veterans Administration concerning the prior treatment (Testimony of Dingman, Downey). Approximately a year later, Mr. Dingman was examined by Dr. Fred C. Nichols, D.D.S., of the Veterans Administration, who found that Dingman did not have gold crowns on teeth number 19 and 20, nor a gold pontic to replace tooth number 18. Mr. Dingman showed Dr. Nichols a cast metal frame work which had once been intended as a unilateral mandibular partial denture to replace tooth number 18 (Testimony of Nichols; Petitioner's Exhibit No. 5). The Veterans Administration, by letter of May 19, 1975, advised the Respondent that he would be billed for $315.00 representing the work which had not been performed. Respondent advised the VA that Mr. Dingman had objected to crown preparations and that he had therefore prepared a cantilever bridge which had been too bulky and thereafter another bridge was made at his expense which was apparently acceptable. The Veterans Administration reasserted its claim for $315.00 and Respondent, by letter of July 14, 1975, sought a credit for the work which he had performed, and by a further letter of August 12, 1975 advised that, although all of his records concerning Mr. Dingman could not be found, he estimated the cost of his actual work to be $207.90, and sought credit therefor (Petitioner's Composite Exhibit 6). Respondent testified that although his original plan was to provide fixed bridge work for Mr. Dingman, upon reflection and after noting that the patient was a hypersensitive person who objected to having the necessary preparatory work that would be required for crowns, he decided to attempt to preserve the natural teeth if possible and not to "abort" them. He further testified that although he had requested his office assistant to prepare an amended VA form for the patient to reflect his decision to do a different type of work, he did not follow-up to see if it was sent in to the Veterans Administration. He further maintained that his office assistant had done poor work, that he did not pay much attention to the paper work in the office and, although he usually reviewed applications for treatment such as Exhibit 4 by "implicit faith", he would usually "skip-read" these forms and sign them without completely checking the details thereon. He stated that his accounts were in a mess during this period and that this was the reason the dental laboratory records concerning Mr. Dingman were unavailable and why he had since hired accountants to do his bookkeeping work. His present assistant supported the fact that when she was first employed about a year and a half ago, Respondent's records were sloppy and that it was her custom to prepare various forms for the Respondent's signature. Mr. Dingman denied that he had ever told the Respondent that he was afraid to have his teeth cut into, or that he was hypersensitive in nature (Testimony of Vollmer, Mander, Person, Dingman) Dr. Daniel Beirne, a physician of Indian Harbor Beach, testified that he had common patients with the Respondent, and that the Respondent had an excellent reputation for truth and veracity in the community. Dr. Downey testified to the Respondent's bad reputation as a dentist, as did Dr. Carroll D. House, a member of the Brevard Dental Society Grievance Committee (Testimony of Burre, Downey, House). Respondent's license to practice dentistry was suspended in 1958 for a period of three months for an advertising violation with the proviso that the suspension was suspended for a period of one year upon certain conditions. His license was again suspended for a period of six months in 1960 for advertising violations (Petitioner's Exhibits 7 & 8)
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.
