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JOHN F. BINKLEY vs. BOARD OF ARCHITECTURE, 80-001981 (1980)
Division of Administrative Hearings, Florida Number: 80-001981 Latest Update: May 20, 1981

Findings Of Fact The Petitioner, John Binkley, has applied for licensure by examination to practice architecture in the State of Florida. The Architectural Licensure Examination administered by the Respondent consists of two portions, the written examination given in December of each year and the site planning and design portion administered in June of each year. Petitioner has complied with all requirements for admittance to the subject examination. The Petitioner sat for a twelve hour examination consisting of a drafting or sketching problem concerning which he was required to design a particular type of building to be accommodated to a particular site, taking into consideration numerous criteria such as human traffic flow, parking, access to both floors, heating and cooling, including passive solar heating, prevailing climate conditions and numerous other aesthetic, engineering and legal requirements. The examination is administered by the Office of Examination Services of the Department of Professional Regulation and is supplied to the State of Florida as well as to all other jurisdictions in the United States by the National Council of Architectural Registration Boards (NCARB) . Pursuant to the authority delineated below, this examination has been adopted for use by Florida applicants for licensure. The examination itself is so constituted as to require the applicant for licensure, the Petitioner, to design a structure for placement on a particular site, including mandatory requirements for accommodating the structure to the site, and vice versa, detailed design of elevations, building cross-sections, facades, and floor plans, effective use of natural light and solar heating potential, regard for the physical and aesthetic needs of the building's occupants, impact on the environment of the site aid its locality and numerous other criteria. Prior to sitting for the examination, each applicant, including the Petitioner, receives a pre-examination booklet setting forth the architectural program to be accomplished by the applicant and various requirements to which the Petitioner was expected to apply himself in order to receive a passing grade. Immediately prior to commencing the examination itself the Petitioner received other information designed to enable him to more adequately design the structure requested and perform the necessary technical and architectural requirements of the problem. In general, the examination was designed to require the Petitioner to design a solution to the site plan and building design problem submitted to him by the NCARB. The pertinent portion of the examination thus allows the examination graders, and through them, the Florida Board of Architecture, to determine whether an applicant such as the Petitioner is able to coordinate the various structural, design, technical, aesthetic, energy and legal requirements in order to resolve the design and site plan problem after having been tested on these same requirements in written form in the initial portion of the examination administered in December of each year. The grading of the site and design portion of the examination was accomplished by submission of the Petitioner's work product to at least three architects selected by the various architectural registration boards of some twenty states. These graders are given training by the NCARB in order to standardize their conceptions of minimal competence required for achievement of a satisfactory grade on the examination. Each architect grader is then asked to review and score various solutions to this site and design problem submitted by applicants, including the Petitioner, on a blind grading basis. The grader has no knowledge of the name or state of origin of the applicant whose solution he is grading. The grader is instructed to take into consideration the various criteria set forth in Rule 21B-14.03, Florida Administrative Code, and the evaluation criteria set forth in the grading sheet (Respondent's Exhibit C). The graders are instructed to note areas of strength and of weakness in an applicant's solution with regard to the grading criteria and then determine, based upon an overall conception of the solution submitted by the applicant, whether or not a passing grade is warranted. A passing grade is defined as a holistic grade of 3 or 4 as set forth in Rule 21B-14.04, Florida Administrative Code. The applicant must receive at least two passing grades from the three architect graders who independently grade his solution to the problem in order to pass the relevant portion of the exam. The Petitioner herein received two failing grades and one passing grade. The Petitioner demonstrated an effort to comply with the instructions set forth in the examination, as well as the pre-examination booklet. He failed however, to achieve sufficient clarity of presentation in several material areas such that the graders could make a clear determination that he understood and had complied with sufficient of the mandatory criteria to achieve passage of the examination. The testimony of Arnold Butt, Chairman of the Department of Architecture at the University of Florida, and architect Robert Yarbro, both graders of the Petitioner's examination, establishes that the Petitioner failed to supply sufficient information to permit a passing score to be awarded based upon the criteria required to be considered and complied with by the authority cited below. The Petitioner's examination was deficient in a number of material respects. He failed to make adequate provision for exits from the second floor of his structure. Indeed one grader, with a serious consideration to the consequences of a fire in the structure indicated that this single deficiency, standing alone, would justify a failing grade. Further, the lack of a second stairway from the second floor failed to meet the extent building code requirements. The Petitioner also failed to so orient the building on the construction site that adequate provision for prevailing temperatures and solar angles in the area could be accomplished for the purpose of conserving energy. The site in question, which was the identical site all applicants for the exam were required to consider and respond to, is located in the central United States (Indiana) where the prevailing concern for energy conservation is for heating in the winter season as opposed to cooling in the summer. A substantially greater number of days each year require heating of a structure in this locality instead of cooling. The Petitioner, however, oriented the building in such a way as to maximize cooling in the summer, but which would minimize solar heating, which is the reverse of the proper practice for that locality and the practice required in the instructions to the examination. The Petitioner's Exhibit One shows solar angles for that locality of the earth by latitude and is used by the Petitioner in an attempt to justify his placing of the great majority of the window area on the northern portion of the building, and indeed the Petitioner testified that this was done because that portion of the building received no direct sunlight. This testimony bears out the fact that, even at the hearing, the Petitioner apparently did not understand that in this locale and climate, use of solar energy for heating the building was the primary and relevant consideration rather than the avoidance of solar energy's detrimental effect on cooling of the building. The Petitioner further failed to make adequate provision for parking, especially with regard to the turning radius of vehicles and their ability to make ingress and egress from the parking spaces he designed, two of which were shown to be entirely unusable. Additionally, the Petitioner had an excessive grade within the parking lot and a 25 percent grade on the exit from the parking lot which was shown to be extremely excessive in view of prevailing winter weather conditions involving snow and ice and consequent safety hazards to persons and vehicles using the site. In his solution to the portion of the problem involving accommodating the site to the proposed structure, the Petitioner accomplished leveling the site by packing fill dirt around the southern border which resulted in an unfeasible gradient in the southern parking lot, and more importantly, the Petitioner used wooden railroad crossties to buttress and support a vertical six foot embankment of filled earth behind which would be placed a large volume of fill in violation of sound architectural principles. Professor Butt established that this would be an extremely dangerous condition in light of the drainage conditions that would prevail on the southern portion of the building site and that should such a six foot embankment be required as a result of such filling, that the minimum support should be a structural steel bulkhead or wall. Further deficiencies were described by the graders who were expert witnesses in addition to the deficiencies upon which the failing grade was based. The testimony of the witnesses that the failure to include the required second exit from the second floor was sufficient to justify a failing grade standing alone was not refuted by the Petitioner and his only justification for that deficiency in the design was that he felt occupants of the second floor, in case of fire, could make their escape by climbing out windows on to the roof of the first story of the building. Further, the Petitioner acknowledged that the grade of approach into or out of the parking area consisting of a four foot pitch in six horizontal feet is an excessive gradient and merely opined that there were only twelve hours to resolve the design problem and that in an actual project such as this that kind of problem would be ironed out later in the construction stage. That contention, however, does not constitute justification for departure from the requirements and instructions of the examination in this regard. Finally, witness Butt established that the Petitioner's failure to give due regard to one of the major design criteria, adjustment of the building to the construction site, engendered some of the other deficiencies resulting in the failing grade, especially the resulting significant problem involving the excessive grade in the parking lot and the resulting excessive and dangerous fill and retaining wall on the southern portion of the site. In view of the above-determined deficiencies, the Petitioner did not establish that his solution to the site and design problem posed by the examination reflects sufficient and appropriate consideration of the requirements and criteria he was instructed to address.

Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings of the parties, it is RECOMMENDED that the failing grade conferred on the Petitioner on the June, 1980 site and design portion of the Architectural Examination be upheld and that the Petition be denied. DONE AND ENTERED this 10th day of April, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1981. COPIES FURNISHED: John F. Binkley 1937 Millbrook Terrace Port St. Lucie, Florida 33452 John Rimes, Esquire Assistant Attorney General Counsel for the Board of Architecture Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Florida Laws (5) 120.57455.217481.209481.211481.213
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ALBERT POZA vs. BOARD OF ARCHITECTURE, 81-002764 (1981)
Division of Administrative Hearings, Florida Number: 81-002764 Latest Update: May 18, 1982

Findings Of Fact The Petitioner, Albert Poza, applied for licensure by examination to practice architecture in the state of Florida. The architectural licensure examination administered by the Respondent consists of two portions, the written examination given in December of each year and the site planning and design portion administered in June of each year. The Petitioner has complied with all requirements for admittance to the subject examination. The Petitioner sat for a twelve hour examination consisting of a drafting or sketching problem concerning which he was required to design a particular type of building to be accommodated to a particular site, taking into consideration numerous design and site considerations such as human traffic flow, parking, access to all floors, heating and cooling, including natural heating and lighting and numerous other aesthetic, engineering and legal requirements. The examination is administered by the office of Examination Services of the Department of Professional Regulation and is supplied to the state of Florida as well as to all other jurisdictions in the United States by the National Counsel of Architectural Registration Boards (NCARB) . Pursuant to the authority delineated below, this examination has been adopted for use by Florida applicants for licensure. The examination itself is so constituted as to require the applicant for licensure, the Petitioner, to design a structure for placement on a particular site, including mandatory requirements for accommodating the structure to the site, and vice versa, detailed design of elevations, building cross-sections, facades, and floor plans, as well as effective use of natural light and solar heating potential, regard for the physical and aesthetic needs of the building's occupants, its impact on the environment of the site and its locality and numerous other criteria. Prior to sitting for the examination, each applicant, including the Petitioner, receives a pre-examination booklet setting forth the architectural program to be accomplished by the applicant and various requirements to which the Petitioner is expected to apply himself in order to receive a passing grade. Immediately prior to commencing the examination itself, the Petitioner received other information designed to enable him to more adequately design the structure requested and perform the necessary technical and architectural requirements of the problem. In general, the examination was designed to require the Petitioner to design a solution to the site plan and the building design problems submitted to him by NCARB. The pertinent portion of the examination thus allows the examination graders, and through them, the Florida Board of Architecture, to determine whether an applicant such as the Petitioner is able to coordinate the various structural design, technical, aesthetic, energy and legal requirements in order to resolve the design and site plan problem after having been tested on these same requirements in written form in the initial portion of the examination administered in December of each year. The grading of the site and design portion of the examination was accomplished by submission of the Petitioner's work product to at least three architects selected by the various architectural registration boards of some twenty states. These graders are given training by the NCARB in order to standardize their conceptions of minimal competence required for achievement of a satisfactory grade on the examination. Each architect grader is then asked to review and score various solutions to the site and design problem submitted by applicants, including the Petitioner, on a blind grading basis. The grader has no knowledge of the name or state of origin of the applicant whose solution he is grading. The grader is instructed to take into consideration the various criteria set forth in Rule 21B-14.03, Florida Administrative Code, and the evaluation criteria set forth in the grading sheet. The graders are instructed to note areas of strength and of weakness in an applicant's solution with regard to the grading criteria and then determine, based on an overall conception of the solution submitted by the applicant, whether or not a passing grade is warranted. A passing grade is defined as a holistic grade of three or four as set forth in Rule 21B-14.04, Florida Administrative Code. The applicant must receive at least two passing grades from the three architect graders who independently grade his solution to the problem in order to pass the relevant portion of the exam. The Petitioner herein received two "2's", which are failing grades and one "3", which is a passing grade. The Petitioner demonstrated an effort to comply with the instructions set forth in the examination, as well as the pre- examination booklet. He failed, however, to achieve sufficient clarity of presentation in several material areas such that the graders could make a clear determination that he understood and had complied with sufficient of the mandatory criteria to achieve passage of the examination. As established by Herbert Coons, Executive Director of the Florida Board of Architecture, and Glenn Paulsen, Professor of Architecture at the University of Michigan, both graders of the Petitioner's examination and the Respondent's expert witnesses, the Petitioner failed to supply sufficient information to permit a passing score to be awarded based upon the criteria required to be considered and complied with in the examination program and by the authority cited below. The Petitioner's examination was deficient in a number of material respects. The Petitioner violated the setback requirements as to the side entrance of the building in question with the result that significant alterations of the off-site and publicly owned sidewalks and easements would be required in order to effect his design solution. It is not good architectural practice, when asked to design a structure, to use land which is not part of the land owned by the client requesting the design. The examination program also specifically required that the candidate either maximize the floor space in the building by eliminating some amenities or if determining to insert amenities such as atria, balconies, large interior spaces and so forth, that these be provided in such a way to make the structure a luxury-type office building. In effect, the owner's goals in this design problem sought either a functional building with maximum floor space or a luxury building with minimal floor space, but with significant cultural amenities. In his solution, the Petitioner did not meet either of those two goals, since he included minimal floor space and yet an insufficient number of luxury features required by the program as an alternative. Other significantly deficient areas in the Petitioner's examination solution included his failure to visually relate the building's design to adjacent buildings. That is, he ignored the instructions in the program requiring him to design a building in an area of historical significance with an appearance which is compatible with adjacent historical buildings; pictures of adjacent buildings being furnished in his examination booklet. The Petitioner failed to allow adequate room in the mechanical equipment space for heating and air conditioning equipment, which the size and type building would require. Additionally Witness Coons established, by scaling the Petitioner's design solution, that the building was too large for the site on which it was to be constructed. Portions of it would encroach upon public property and violate local zoning ordinances. In a more serious vein, it was established that the building design did not contain an adequate allowance for structural support as to the various spans over the columns. The column spacing was appropriate, but the beams depicted are not of a sufficient size and type to safely support the structure and there is a danger that a building so constructed would collapse. Additional deficiencies noted involved poor human traffic circulation in the third floor lobby area design, insufficient storage space included in the design for the third floor lecture room and inadequate provision for landscaping. Other less significant deficiencies were noted including, as admitted by the Petitioner that the square footage on the upper floors was in error. In short, significant program requirements were not provided for or complied with by the Petitioner. In view of the above determined deficiencies, the Petitioner failed to establish that his solution to the site and design problem posed by the examination reflects sufficient and appropriate consideration of the requirements and criteria he was instructed to address.

Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore

Florida Laws (5) 120.57455.217481.209481.211481.213
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CHRISTOPHER NATHANIEL LOVETT vs DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF PROFESSIONAL ENGINEERS, 03-004013RP (2003)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Oct. 29, 2003 Number: 03-004013RP Latest Update: May 26, 2005

The Issue The ultimate issue in this proceeding is whether proposed Florida Administrative Code Rule 61G15-21 is an invalid exercise of delegated legislative authority.

Findings Of Fact Florida Administrative Code Rule 61G15-21.004, in relevant part, states: The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100. A passing grade on Part Two of the examination is defined as a grade of 70 or better. The grades are determined by a group of knowledgeable professional engineers, who are familiar with engineering practice and with what is required for an applicable engineering practice and with what is required for an applicable engineering task. These professional engineers will establish a minimum passing score on each individual test item (i.e., examination problem). An Item Specific Scoring Plan (ISSP) will be prepared for each examination item based upon the NCEES standard scoring plan outline form. An ISSP will be developed by persons who are familiar with each discipline including the item author, the item scorer, and other NCEES experts. On a scale of 0-10, six (6) will be a minimum passing standard and scores between six (6) and ten (10) will be considered to be passing scores for each examination item. A score of five (5) or lower will be considered an unsatisfactory score for that item and examinee will be considered to have failed that item. To pass, an examinee must average six (6) or greater on his/her choice of eight (8) exam items, that is, the raw score must be forty- eight (48) or greater based on a scale of eighty (80). This raw score is then converted to a base 100 on which, as is noted above, a passing grade will be seventy (70). The proposed changes to Florida Administrative Code Rule 61G15-21.004, in relevant part, state: The passing grade for the Engineering Fundamentals Examination is 70 or better. The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100. The passing grade for the Principles and Practice Examination is 70 or better. A passing grade on Part Two of the examination is defined as a grade of 70 or better. The grades are determined by a group of knowledgeable professional engineers, who are familiar with engineering practice and with what is required for an applicable engineering practice and with what is required for an applicable engineering task. These professional engineers will establish a minimum passing score on each individual test item (i.e., examination problem). An Item Specific Scoring Plan (ISSP) will be prepared for each examination item based upon the NCEES standard scoring plan outline form. An ISSP will be developed by persons who are familiar with each discipline including the item author, the item scorer, and other NCEES experts. On a scale of 0-10, six (6) will be a minimum passing standard and scores between six (6) and ten (10) will be considered to be passing scores for each examination item. A score of five (5) or lower will be considered an unsatisfactory score for that item and examinee will be considered to have failed that item. To pass, an examinee must average six (6) or greater on his/her choice of eight (8) exam items, that is, the raw score must be forty- eight (48) or greater based on a scale of eighty (80). This raw score is then converted to a base 100 on which, as is noted above, a passing grade will be seventy (70). Petitioner resides in Tampa, Florida. On April 11, 2003, Petitioner took a national examination that Petitioner must pass to be licensed by the state as a professional engineer. On July 1, 2003, Petitioner received a letter from the Board advising Petitioner that he had received a failing grade on the examination. On July 2, 2003, Petitioner unsuccessfully requested the raw scores on his examination from a representative of the National Council of Examiners for Engineering and Surveying (NCEES). The NCEES is the national testing entity that conducts examinations and determines scores for the professional engineer examination required by the state. On July 9, 2003, Petitioner submitted a formal request to the Board for all of the raw scores related to Petitioner "and all past P.E. Exams that the Petitioner had taken." A representative of the Board denied Petitioner's request explaining that the raw scores are kept by the NCEES and "it is not their policy to release them." The Board's representative stated that the Board was in the process of adopting new rules "that were in-line with the policies of the NCEES." On July 31, 2003, Petitioner requested the Board to provide Petitioner with any statute or rule that authorized the Board to deny Petitioner's request for raw scores pursuant to Section 119.07(1)(a), Florida Statutes (2003). On the same day, counsel for the Board explained to Petitioner that the Board is not denying the request. The Board is unable to comply with the request because the Board does not have physical possession of the raw scores. Petitioner and counsel for Respondent engaged in subsequent discussions that are not material to this proceeding. On August 6, 2003, Petitioner requested counsel for Respondent to provide Petitioner with copies of the proposed rule changes that the Board intended to consider on August 8, 2003. On August 27, 2003, Petitioner filed a petition with the Board challenging existing Florida Administrative Code Rule 61G15-21.004. The petition alleged that parts of the existing rule are invalid. Petitioner did not file a challenge to the existing rule with DOAH. The Petition for Hearing states that Petitioner is filing the Petition for Hearing pursuant to Subsections 120.56(1) and (3)(b), Florida Statutes (2003). However, the statement of how Petitioner's substantial interests are affected is limited to the proposed changes to the existing rule. During the hearing conducted on January 29, 2004, Petitioner explained that he does not assert that the existing rule is invalid. Rather, Petitioner argues that the Board deviates from the existing rule by not providing examinees with copies of their raw scores and by failing to use raw scores in the determination of whether an applicant achieved a passing grade on the exam. Petitioner further argues that the existing rule benefits Petitioner by purportedly requiring the Board to use raw scores in the determination of passing grades. The elimination of that requirement in the proposed rule arguably will adversely affect Petitioner's substantial interests. The Petition for Hearing requests several forms of relief. The Petition for Hearing seeks an order granting Petitioner access to raw scores, a determination that Petitioner has met the minimum standards required under the existing rule, and an order that the Board grant a license to Petitioner. The Petition for Hearing does not request an order determining that the proposed rule changes constitute an invalid exercise of delegated legislative authority.

Florida Laws (4) 119.07120.56120.68455.217
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ERIC SOBEL vs DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF CONSTRUCTION, 03-001642 (2003)
Division of Administrative Hearings, Florida Filed:Clearwater, Florida May 07, 2003 Number: 03-001642 Latest Update: Nov. 06, 2019

The Issue The issues in this case are whether certain questions within the June 2002 construction building contractor examination are invalid, and whether Petitioner should receive credit for certain answers scored as incorrect.

Findings Of Fact In June 2002, Petitioner sat for the construction building contractor examination. Shortly following the exam, Petitioner was advised that he incorrectly answered 17 of the 50 exam questions and did not attain the minimum passing score of 70 percent, but received a failing scaled score of 66 percent. Petitioner timely challenged the validity and scoring of eight questions, including questions 8, 14, 17, 33, 34, 38, 43, and 44. In order for Petitioner to acquire a passing score, Petitioner must prove that certain challenged questions are invalid or demonstrate that he is entitled to receive credit for his answers. Specifically, Petitioner must demonstrate that either three questions should be stricken from the exam providing Petitioner with 70.2 percent, two questions should be stricken and one answer scored as correct providing Petitioner with 70.8 percent or two answers should scored as correct providing Petitioner with 70 percent. QUESTION 8 Exam Question 8 asks, "According to AIA-A201, who determines the interest rate that the contractor can charge on due and unpaid payments?" Petitioner's expert, Mr. Uman, argues that the parties to the contract are not defined within the question and it is therefore misleading. However, the credited answer D, "all the parties must agree on the rate" is within the provided reference material and is clearly the best answer. It is not misleading and Petitioner's argument lacks merit. In addition, 89.47 percent of the test-takers correctly answered Question 8. QUESTION 14 Exam Question 14 is wordy and involves computations. It requires the test-taker to calculate the number of "labor" hours required per 100 pieces to build a wall, given certain pricing and wall construction information. Question 14 is ambiguous and confusing on its face. While the question asks for labor hours, the facts provide a fixed combined hourly cost for a mason and laborer's hour. There is no distinction made between "labor" hours and a "laborer's" hours. Mr. Collier admitted that there is some apparent confusion between "labor" costs and the "laborer's" costs. Mr. Palm further agreed and indicated that he fully understood Petitioner's rationale to divide the labor costs in half and choose answer A. Furthermore, it is clear that Petitioner's perception of the question was not unique. In fact, only 46.62 percent of the test-takers correctly answered Question 14. QUESTION 17 Exam Question 17 asks, "During the bid process, which document has priority in the event of conflicting information?" Clearly, the correct answer is B, "addenda." Petitioner's argument regarding "competitively bid projects" is without merit. Mr. Palm succinctly explained that Petitioner's selection was obviously incorrect because "plans don't change during the bid process unless there is an addenda issued." Moreover, 75.56 percent of the test-takers correctly answered Question 17. QUESTION 33 Exam Question 33 identifies a situation that where drawings differ from written specifications and where there is no legal precedent that one is more binding than the other. The question specifically calls for the best procedure according to the listed and available reference. While Mr. Uman argues that the answer does not appear within the reference material in a clear manner, the exact text of the question and answer are in fact within the material. Petitioner's argument lacks credibility. QUESTION 34 Exam Question 34 asks the test-taker "what is the EARLIEST workday for completing the masonry work?" given the number of crew, the number of hours required, and the ratio constant of the crew. Although 80.45 percent of the test-takers correctly answered Question 34, Mr. Uman argues that the question could have been answered without reference to the Builder's Guide to Accounting material and therefore, was misleading. Petitioner's argument is devoid of common sense. QUESTION 38 Exam Question 38 asks the test-taker to identify the activity that "a specialty structural contractor is qualified" to perform. Petitioner's expert, Mr. Uman, again argues that the question is misleading since the credited correct answer "perform non-structural work" is not written verbatim in the provided reference material. To the contrary however, all of the alternative choices are clearly listed in the reference material as activities specifically prohibited by specialty structure contractors. Furthermore, page 2B17 to 61G415.015 of the Contractor's Manual specifically states that: The specialty structure contractor whose services are limited shall not perform any work that alters the structural integrity of the building including but not limited to roof trusses. Respondent's experts, Mr. Collier and Mr. Palm, agree that Question 38 is clear. Moreover, 53.38 percent of test- takers correctly answered the question. While the question appears to require enhanced reasoning skills and is generally more difficult, it is not misleading. Petitioner's assertions are without merit. QUESTION 43 Exam Question 43 asks, "Which accounting method should be used by a contractor if the contractor is unable to reasonably estimate the amount of progress to date on a job or the total costs remaining to fulfill the contract?" Mr. Uman argues that the question is ambiguous and the reference material is "not terribly clear." He further alleges that when a contractor cannot estimate progress, the contractor cannot establish a "completed contract method," the credited correct answer. Respondent's experts disagree. While it is true that Mr. Palm agreed that all of the choices are accounting methods which is inconsistent with Mr. Collier's testimony, the reference material is clear. In fact, 58.65 percent of the test-takers correctly answered Question 43. Petitioner presented insufficient evidence that he should receive credit for his answer or that Question 43 should be invalidated. QUESTION 44 Exam Question 44 provides detailed information regarding a standard form contract and asks, "Based ONLY on the information given above, what is the amount of the current payment due?" In addition, however, as Mr. Uman points out, the standard form referred to in the problem was mistakenly misidentified as Form 201 instead of Form 702. While it is clear that the referenced form was mislabeled, the precise form number was incidental, unrelated to the question, and unnecessary to compute the answer. In fact, Mr. Palm explains that the problem was "just a mathematical exercise." According to Mr. Collier, the question was not misleading, and the incorrect reference was irrelevant. "It's simple math, industry knowledge." Furthermore, Petitioner's answer is clearly incorrect because "he failed to deduct the retainage." Finally, 54.89 percent of the test-takers correctly answered Question 44.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered invalidating only Question 14, re-computing Petitioner's examination score, and dismissing his challenge. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 1st day of October, 2003. COPIES FURNISHED: Nickolas Ekonomides, Esquire 791 Bayway Boulevard Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (3) 120.57120.68455.217
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BOARD OF PROFESSIONAL ENGINEERS vs. SAM G. GILLOTTI, 86-004800 (1986)
Division of Administrative Hearings, Florida Number: 86-004800 Latest Update: Aug. 22, 1990

The Issue The issues in this case are whether the Board of Professional Engineers should discipline either Sam G. Gillotti on charges made against him in the Administrative Complaint filed in Case No. 86-4800 on or about September 26, 1986, or Charles B. Bland on charges made against him in the Administrative Complaint in Case No. 87-1213 on or about November 14, 1986, or both. The Administrative Complaint against Gillotti in Case No. 86-4800 alleges essentially that he falsely certified both to Bland, as a part-owner, the owner representative, the engineer of record and the building contractor of record, and to the Imperial Polk County Building and Zoning Codes Department, that the structural members of an eleven-story project known as the Marlborough House, located in Winter Haven, Florida, was built according to approved plans and according to applicable building codes. The Administrative Complaint alleges that this constitutes violations of: (a) Section 471.033(1)(e), Florida Statutes, which prohibits the making or filing of a report which the licensee knows to be false; (b) Section 471.033(1)(g), Florida Statutes, which prohibits negligence or misconduct in the practice of engineering; (c) F.A.C. Rule 21H- 19.01(5)(b), which is alleged to prohibit being untruthful, deceptive, or misleading in any professional report whether or not under oath; and (d) F.A.C. Rule 21H-19.01(5)(m), which is alleged to prohibit knowingly failing to report a violation. The Administrative Complaint against Bland in Case No. 87-1213 alleges in three counts that Bland: (Count I) was negligent in light of several specified deficiencies in the structural members of the Marlborough House, in violation of Section 471.033(1)(g) and (k), Florida Statutes, and F.A.C. Rule 21H-19.01(3); (Count II) falsely certified to the Imperial Polk County Building and Zoning Codes Department that the design of the Marlborough House was in accordance with applicable building codes (when combustible materials were designed to be used in the penthouse roof, in violation of the Southern Building Code), in violation of Section 471.033(1)(g), which prohibits fraud or deceit or misconduct in the practice of engineering, and F.A.C. Rule 21H-19.01(5)(b), which is alleged to define misconduct to include being untruthful in any professional report; and (Count III) signed and sealed electrical drawings for the Marlborough House when he was not competent through adequate training and experience to do so, in violation of Sections 471.033(1)(g) and (k), Florida Statutes, and F.A.C. Rule 21H-19.01(5)(d).

Findings Of Fact At all times relevant to the issues raised by the Administrative Complaint in Case No. 86-4800, Gillotti was licensed by the Department of Professional Regulation, Board of Professional Engineers, as a licensed professional engineer, having been issued license number PE 0012849. Indeed, Gillotti has been licensed to practice engineering in Florida for 23 years and, including practice in another state, has practiced engineering for 40 years. Besides this Administrative Complaint, Gillotti has never had a disciplinary proceedings brought against him as a licensed professional engineer. Bland, too, is and at all times material to the issues raised in the Administrative Complaint in Case No. 87-1213 has been a licensed engineer in the State of Florida, having been issued license number PE 0019406. Bland is licensed as an engineer in other states--17 at the time of the final hearing, plus approximately another ten in years past. He has been practicing engineering since 1962. He has provided engineering services for the construction of approximately 200 high-rise masonry buildings, including three in progress at the time of the hearing. Like Gillotti, this is Bland's first disciplinary action during his career as an engineer. Bland became involved in a project in Winter Haven, Florida, known as the Marlborough House in the late 1970s. Bland, doing business as Wellington Construction Corporation, was a part-owner of the project, and he also represented the joint venture that owned the property. The project was the development of an eleven-story condominium across the street from Cypress Gardens. Bland also served as the engineer of record for the project. He created the structural design and did the structural drawings for the planned condominium building. The design called for the construction of reinforced masonry bearing walls. The design transferred weight from the eleven stories to the foundation through a combination of wall types. On the higher floors, where the loads would be least, cement block walls sufficed. As the weight accumulated and increased progressively towards the lower floors, the wall was designed to bear the increased weight with a margin of safety against structural damage or collapse. First, the cement blocks comprising the walls were designed to be filled with grout for increased strength. On lower levels, reinforcement bars (rebars) were required to be inserted in the cement blocks, along with the grout, for even more strength. Still lower in the building, reinforced cements block and steel tube columns were required in the spaces between the walls. Finally, at the lowest levels, the reinforced columns had to be poured concrete to withstand the heaviest loads. The structural design called for special inspections to be made to assure that construction of the varied and relatively complex masonry bearing wall system would be according to plans. Bland coordinated his structural design with the architectural drawings 1/ and had both approved by the Imperial Polk County Building and Zoning Codes Department. It was decided that the Marlborough House would be inspected by affidavit, as permitted under the 1976 Standard Building Code, which Polk County had adopted. Under the affidavit system, the owner or designer of the building swears under oath that the building will be built according to approved plans and applicable local codes. Then, at the end of construction, before issuance of a certificate of occupancy, the owner or its designated representative must swear under oath that the building has been built according to approved plans and applicable local codes. However, the Imperial Polk County Building and Zoning Codes Department was unfamiliar with the affidavit system of inspection, never having used it before, and allowed letters to serve in place of a sworn affidavit. At some point after approval of the plans for the Marlborough House, the structural plans were revised. The revised plans called for "poured-in- place" concrete flooring instead of the precast concrete floor system in the approved drawings. The revised drawings also called for a wood truss roof system for the penthouse roof. Otherwise, the structural drawings were essentially the same and also called for special inspections to be made to assure that construction of the varied and relatively complex masonry bearing wall system would be according to plans. The wood truss roof system for the penthouse was discussed and coordinated with the architect on the project. It is not clear whether the other structural revisions were discussed and coordinated with the architect. It is clear, however, that the architectural drawings were not modified to coordinate with the changes in the structural drawings. The the structural revisions were not formally approved by the Imperial Polk County Building and Zoning Codes Department. At least one change, allowing cantilevered balconies instead of corner column supports for the balconies, was approved as a field change. At some point early in the construction of the Marlborough House, the major investor in Bland's joint venture, Des Peres Financial Corporation of Missouri, and Bland decided that, since Bland was both engineer of record and part-owner, as well as owner representative and building contractor of record on the project, it would be wise for an engineer other than Bland to inspect the project for progress for purposes of requisition draws. Bland and Neil Luton, owner of the Neil Luton Planning Group, which Bland had hired to coordinate the development and obtain the necessary government permitting, decided to hire Gillotti for this purpose. Gillotti knew Bland slightly from a prior business relationship but that was the extent of Gillotti's knowledge of Bland. Gillotti had more of a working relationship with Luton, having being retained by him in connection with more than one development project in the past. Gillotti was not hired to, and was not relied upon by Bland and Luton to, provide the special inspections of the construction of the masonry bearing wall system called for in the structural drawings. In December, 1980, Bland gave the Imperial Polk County Building and Zoning Codes Department a letter representing that the Marlborough House would be built according to approved plans and applicable structural provisions of the local code. In another letter to the Imperial Polk County Building and Zoning Codes Department, Bland acknowledged that, although he had "associated" himself with another Florida licensed professional engineer, Gillotti, "concerning the progress inspections," he (Bland) had "ultimate responsibility concerning the structural aspects of the project." Gillotti's first requisition inspection was during the construction of the fourth level of the Marlborough House. It was known to the Imperial Polk County Building and Zoning Codes Department that Gillotti was not present, or any way involved with the project, during the construction of the lower levels. Altogether, Gillotti made only three inspections during construction of the structural members of the Marlborough House, during construction of the fourth, eighth and penthouse levels. Although Gillotti was inspecting for purposes of requisition, he noted his general observations, including in some cases deviations from what he understood to be the building plans (the revised, not the approved, plans), on a report of each of the inspections. He provided a copy of his inspection report both to Bland and to the Imperial Polk County Building and Zoning Codes Department. Both Bland and the Polk County Building Inspection Department knew that Gillotti made only three inspections during construction of the structural members of the Marlborough House, during construction of the fourth, eighth and penthouse levels. Neither Bland himself nor any other structural engineer was on the site doing the special inspections called for in the structural engineering plans during the construction of levels which Gillotti did not see being constructed. Neither Gillotti nor Bland, nor the two of them together, were on the site enough to properly conduct the special inspections required by the structural plans. In June, 1981, the building was nearing completion, and Bland and Des Peres wanted the Imperial Polk County Building and Zoning Codes Department to issue a restricted temporary certificate of occupancy for the common areas so that the owners could begin selling condominium units in the project and obtain favorable financing terms for prospective buyers. For this purpose, Bland solicited and obtained from Gillotti a June 10, 1981, letter stating that the structural members of the Marlborough House were built according to the approved plans and local code. He did not qualify the letter either to note the limitations of his personal knowledge (and that he had to rely on Bland's representations to him as to most of the structure) or to again point out the deviatioins from the plans that he had noted in his inspection reports. Bland knew that Gillotti's June 10, 1981, letter certifying the structural members of the building was not accurate and could not be relied on. He knew that Gillotti was not at the site enough to have certified the building in this manner. He should have known that neither Gillotti's inspections, his inspections, or the inspections of both men, were sufficient to comply with the special inspections requirements of the structural engineering plans. 2/ He also knew, or should have known, that he never gave Gillotti a copy of the approved plans, but only a copy of the revised plans, for Gillotti's use in inspecting the building. Bland used Gillotti's June 10, 1981, letter to obtain from the Imperial Polk County Building and Zoning Codes Department a Temporary Certificate of Occupancy, issued on July 27, 1981, for the main lobby, the elevator and the elevator corridors, only, (and not the individual apartments) for floors 1-10 only. To obtain a temporary certificate of occupancy for the rest of the building, on or about August 7, 1981, Bland gave the Imperial Polk County Building and Zoning Codes Department a letter certifying, among other things, that he had designed the Marlborough House in full conformance with the Standard Building Code, 1976 Edition, the National Fire Protection Code #3, and the National Electrical Code, 1975 Edition, with Polk County amendments, and that "[t]he building has now been constructed in full conformance with the above mentioned codes." Knowing that Gillotti also had been at the site performing inspections, the Director of the Imperial Polk County Building and Zoning Codes Department asked for a letter from Gillotti, too, although Bland's certification letter was considered to be legally sufficient under the affidavit system of inspection. Neil Luton relayed the request to Gillotti. On or about August 10, 1981, Gillotti sent the Imperial Polk County Building and Zoning Codes Department a letter certifying "that the structural members of the [Marlborough House] were built according to the approved plans, the Standard Bldg. Code 1976 Edition, and the local code." He qualified this certification only by writing: "Mr. Charles Bland made the Mechanical, Plumbing, & Electrical inspections for the above building." On or about August 14, 1981, the Imperial Polk County Building and Zoning Codes Department issued a Temporary Certificate of Occupancy" for all of the Marlborough House except the penthouse level. In fact, the Marlborough House was not built in accordance with either the approved plans or the applicable codes in that the wooden truss roof system for the penthouse level was not approved by the Imperial Polk County Building and Zoning Codes Department and violated provisions of the Southern Standard Building Code that prohibit the use of combustible materials in the penthouse roof system. Other than the use of wooden trusses in the penthouse roof system, the evidence did not prove that the structure of the building failed meet the applicable codes except that the building was not constructed according to the approved plans in several respects: Reinforced concrete columns called for on the drawings had not, in all cases, been provided, e.g., in the second level, west unit, in the wall between the bathrooms. Instead, reinforced concrete block columns, which are not as strong, were substituted. Steel tube columns specified at the exterior corners of bedrooms were not provided, e.g., at the tenth level, east unit, exterior corner, approximately 30 feet south of the north wall. Spandrel beams specified at balconies, beams to be placed at the exterior edge of the balcony slabs, were not provided. Uncontrolled cutouts for ducts and electrical conduits were made in bearing walls. In one case, a wall was designed to be nine feet wide and had four feet missing due to uncontrolled cutouts. Some of the concrete blocks making up bearing walls were poorly aligned vertically. Misaligned blocks are hard to fill with grout, as the plans require in some places. In addition, vertically misaligned block introduces eccentric forces at the mortar joint between blocks, instead of transferring the load directly vertically through the block to the foundation in accordance with the structural design. In addition, some wall sections were misaligned so that one level's wall was not positioned directly above the wall section of the level below it. In one case, the displacement was greater than the width of the wall. As a result, lateral forces were introduced to the floor slab between the two wall sections, contrary to the structural design for the building. (f) Cement block cells that were designed to receive grout did not in some instances. In addition, the electrical engineering plans contained numerous deviations from the standards of the electrical engineering industry, as well as the National Electrical Code: Drawing E-1.-- There were no wire sizes shown for the various apartments for the branch circuits, contrary to the standards of the electrical engineering industry. There were no circuit numbers shown for the various apartment devices, another deviation from the standards of the industry. The outlet spacings in the apartment rooms and kitchens are not in accordance with the National Electrical Code (NEC), s. 210-25(b). There are no telephone or television outlets indicated on the plans, contrary to industry standards. There is no air conditioning disconnect switch indicated, as required by NEC s. 430 to allow for safe servicing of the unit. There was no life safety system audio device shown in the common corridors or stairs as required by the National Fire Protection Association (NFPA) s. 101. The apartment panelboards A and B do not show a branch circuit for the water heater, which is provided in the plumbing drawings. Drawing E-2.-- Drawing E-2 has the same deviations noted in (a) through (f) for Drawing E-1. The connection shown for the fire pump required by the NFPA in all buildings did not meet the requirements of the NEC. No short circuit rating for any of the electrical over-current devices, panelboard bussing, etc., are shown, contrary to the requirements of NEC s. 110-9. Drawing E-3.-- The telephone system conduit sizes shown appear inadequate to handle risers of 20 outlets. The ratio of 20 outlets to one riser also appears excessive. The normal ratio is six apartments per riser. The plans do not indicate the size of the elevator disconnect switch as required by NEC s. 430. Drawings E-1A, E-2A and E-3A.-- Drawing E-1A, E-2A and E-3A have the same deviations noted in (a) through (c), (e) and (f) for Drawing E-1. Drawing E-4. Drawing E-4 has the same deviations noted in (i) and (j) for Drawing E-2. In addition, the electrical riser does not show all feeder sizes or equipment sizes, a requirement of the NEC. Drawing E-4A. Some fire alarm schematics were shown but they were incomprehensible. This fails to meet the requirements of the NFPA s. 101, which requires the schematic to show the components of the system and how it is going to perform. Bland has had a great deal of experience in the design and construction of multistory buildings such as the Marlborough House, and has sealed the electrical engineering plans on many of those projects. The evidence did not prove that his experience and training was not adequate to enable him to do the electrical drawings for the Marlborough House. However, the extensive deviations between Bland's electrical plans and the various code requirements do prove that Bland was either incompetent or grossly negligent in drawing the electrical plans for the Marlborough House.

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: (1) finding Sam G. Gillotti guilty of violating Section 471.033(1)(e), Florida Statutes (1981), under the Administrative Complaint in Case No. 86-4800, fining him $1,000 and placing him on probation for six months; and (2) finding Charles B. Bland guilty of violating Section 471.033(1)(e) under Count I and II, and Section 471.033(g), Florida Statutes (1981), under Count III, of the Administrative Complaint in Case No. 87-1213, fining him $3,000 and suspending his license for one year, followed by one year of probation. RECOMMENDED this 22nd day of August, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 22nd day of August, 1990.

Florida Laws (1) 471.033
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RICHARD BERRY vs. BOARD OF ARCHITECTURE, 88-001376 (1988)
Division of Administrative Hearings, Florida Number: 88-001376 Latest Update: Nov. 21, 1988

Findings Of Fact Richard Berry, an applicant for licensure as a landscape architect, was administered the Landscape Architecture License Examination in June, 1987. This exam is a standardized national test which is prepared by the Council Of Landscape Architectural Registration Boards and administered through the Florida Department of Professional Regulation. Part of the examination requires the implementation of design knowledge through practical application. Mr. Berry's score on the design implementation portion of the exam was not sufficient to constitute a passing score. A weighted score of 75 on each portion is required to pass the examination. Mr. Berry passed all other portions of the examination. Upon initially receiving the failing score, Mr. Berry requested an informal review of the grading, which resulted in an upward adjustment of his score. However the score was still insufficient to raise the score to a passing level. The remaining disagreement centered on five items in the practical examination. The items were related to architectural drawings submitted by the Petitioner as required by question four of the design implementation portion of the exam. The items were as follows: 4b(2) drawing of wood deck attachment detail to wall 4b(4) drawing of concrete sidewalk grade wall detail 4b(5) drawing of metal fence detail 4b(6) qualities/quantities of materials listed 4c(2,3) drawing of deck detail At the hearing, Mr. Berry discussed the relevant exam questions and clearly articulated why he believed his responses were entitled to credit in addition to what had originally been given by the examination graders. The Department's expert witness, Mr. Buchannan, indicated that he had rescored Mr. Berry's exam responses in accordance with the "Examination Evaluation Guide" issued by the Council of Landscape Architectural Examination Boards. Mr. Buchannan testified that one point of additional credit should have been given for Mr. Berry's response on the item 4b(2) and one point of additional credit should be given for the response on item 4b(6) of the design implementation portion of the exam. No additional points were to be credited to the responses on the three remaining items. Juan Trujillo, examination development specialist for the Department of Professional Regulation testified as to the effect of the additional points. According to his testimony, the additional credit would provide Mr. Berry with, a raw score of 71.5, which equates to a weighted score of 74.5. The weighted score is rounded up by the Department to a grade of 75.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Department of Professional Regulation, Board of Landscape Architecture, granting to Petitioner, if otherwise qualified, licensure as a landscape architect. DONE and ORDERED this 21st day of November, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 21st day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1376 The proposed findings of fact submitted by the Respondent are accepted as modified in the Recommended Older. COPIES FURNISHED: Richard Berry, pro se 6588 Southeast 78th Avenue Keystone Heights, Florida 32656 William Leffler, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Ard, Executive Director Department of Professional Regulation Board of Landscape Architects 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750

Florida Laws (2) 120.57481.309
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FLORIDA BOARD OF PROFESSIONAL ENGINEERS vs OLIVER TURZAK, P.E., 13-004046PL (2013)
Division of Administrative Hearings, Florida Filed:Tampa, Florida Oct. 17, 2013 Number: 13-004046PL Latest Update: Jul. 01, 2014

The Issue The issue is whether Oliver J. Turzak violated statutes and rules governing the practice of engineering as charged in the Amended Administrative Complaint filed with the Clerk of the Florida Board of Professional Engineers (the “Board”) on October 4, 2012.

Findings Of Fact Petitioner is charged with regulating the practice of engineering pursuant to chapter 455, Florida Statutes. The Administrative Complaint at issue was filed by the Florida Engineers Management Corporation (“FEMC”) on behalf of Petitioner. FEMC is charged with providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers pursuant to section 471.038, Florida Statutes. Respondent is, and at all times material to these proceedings has been, a licensed professional engineer in the State of Florida, having been issued license number PE 18230. Respondent’s last known address is 5405 Water Street, New Port Richey, Florida 34652. On April 20, 2008, Respondent signed, sealed, and dated a Settlement Stabilization Plan for the Fish Residence located at 11251 Knotty Pine Drive, New Port Richey, Florida (“Fish Residence Project”). On June 10, 2008, Respondent signed, sealed, and dated an engineering opinion letter (“Letter”) which was addressed and sent to Champion Foundation Repair, the entity which was Respondent’s client for the Fish Residence Project. The Letter stated in material part: [Respondent], whose signature appears below, has verified placement of twenty-seven (27) exterior piers and twenty-five (25) interior jack pins as located on the drawings by the same job number. The piers all achieved sufficient load bearing characteristics to transfer the house weight to the piers and to close cracks substantially and stabilize the foundation. The remediation program was developed according to geological data supplied by Central Florida Testing Laboratories, Inc., dated November 2007. Similar pier reports on numerous structures with similar problems have demonstrated long term success without additional settlement. Therefore, it is the opinion of the [Respondent] that the location has been repaired and stabilized and, further, that there is no evidence of new sinkhole activity at the location. In compliance with Florida Statute 627.707, the report and remediation program was prepared under the supervision of a Registered Professional, whose field of expertise is a Geo-Technical Engineer. The Board has adopted Responsibility Rules of Professional Engineers (“Responsibility Rules”). These rules are contained in Florida Administrative Code Chapters 61G15-30 through 61G15-35. Professional engineers, who perform services covered by the Responsibility Rules, are required to comply with those rules. Rule 61G15-30.002(1) mandates that Respondent, as the structural engineer of record, is professionally responsible for the documents prepared for the Fish Residence Project. As such, Respondent is responsible for producing a document that complies with the applicable portions of the Responsibility Rules. Respondent acted as Engineer of Record of the Structure for the Fish Residence Project as that term is defined in rules 61G15-31.002(1) and 61G15-31.003(1). As such, all structural documents prepared, signed, sealed, and dated by Respondent must contain the information set out in rule 61G15-31.002(5), as mandated by rule 61G15-31.001, setting out the General Responsibility standards for engineers designing structures. Section 471.033(1)(g), Florida Statutes, provides that an engineer is subject to discipline for engaging in negligence in the practice of engineering. Florida Administrative Code Rule 61G15-19.001(4) provides that negligence constitutes “failure by a professional engineer to utilize due care in performing in an engineering capacity or failing to have due regard for acceptable standards of engineering principles.” Rule 61G15-19.001(4) also provides that: [F]ailure to comply with the procedures set forth in the Responsibility Rules as adopted by the Board of Professional Engineers shall be considered as non-compliance with this section unless the deviation or departures therefrom are justified by the specific circumstances of the project in question and the sound professional judgment of the professional engineer. Respondent’s June 10, 2008, Letter is an engineering “certification” as that term is defined in Florida Administrative Code Rule 61G15-18.011(4): statement signed and sealed by a professional engineer representing that the engineering services addressed therein, as defined in section 471.005(6), F.S., have been performed by the professional engineer, and based upon the professional engineer’s knowledge, information and belief, and in accordance with commonly accepted procedures consistent with applicable standards of practice, . . . . “Certifications” are subject to the standards set out in Florida Administrative Code Rule 61G15-29.001, which require that if an engineer is presented with a “certification” that “involve[s] matters which are beyond the engineer’s scope of services actually provided” that the engineer must “decline to sign . . . such certification.” Section 471.033(1)(a) provides that an engineer is subject to discipline for “[v]iolating . . . [a] rule of the [B]oard.” Section 471.033(1)(e) provides, in material part, that a professional engineer is subject to discipline for “[m]aking or filing a report or record that the licensee knows to be false” when the report is “signed in the capacity of a licensed engineer.” Rule 61G15-19.001(6) provides that: A professional engineer shall not commit misconduct in the practice of engineering. Misconduct in the practice of engineering as set forth in Section 471.033(1)(g), F.S., shall include, but not be limited to: * * * (b) Being untruthful, deceptive, or misleading in any professional report, statement, or testimony whether or not under oath or omitting relevant and pertinent information from such report, statement or testimony when the result of such omission would or reasonably could lead to a fallacious conclusion on the part of the client, employer or the general public; . . . . The Fish Residence In 2007, the residence located at 11251 Knotty Pine Drive in New Port Richey, Florida (the “Fish Residence”), experienced structural damage from subsidence in the ground underlying the home. As a result, a claim was made to Fish’s insurance company, and an investigation was commenced. Central Florida Testing Laboratories, Inc. (“CFTL”), a geotechnical engineering firm, performed an in-depth analysis and found, in a signed, sealed, and dated engineering report issued on November 20, 2007, that the subsidence was likely caused by a number of factors, including sinkhole activity. As a result, the Fishes hired a contractor, Champion Foundation Repair (“Champion”) to remediate the damage. Champion hired Respondent to perform the engineering services necessary to obtain a permit for the remediation, inspect the construction, and complete a report certifying the adequate completion of the work. Respondent had a long history of providing similar services to Champion in the past, having performed engineering services in over 200 projects for Champion. Respondent created, signed, sealed, and dated on April 20, 2008, a Settlement Stabilization Plan (“Plan”), which formed the design basis for the work Champion carried out. Well into the project, the Fishes became dissatisfied with the work done by Champion. Champion was terminated as the contractor before the work was finalized and before Respondent was able to perform a final inspection of the property. Litigation was commenced and Bracken Engineering (“Bracken”), a forensic structural/civil engineering firm was engaged to perform an investigation of the work performed by Champion and Respondent for the pending litigation. Bracken issued a lengthy engineering report (“Bracken Report”), under engineering seal, on June 20, 2011. The Bracken Report found Respondent’s Plan deficient, that Respondent was not adequately knowledgeable about the site, that Champion’s implementation of the Plan, and Champion’s construction work as a whole was flawed and inadequate. Subsequent to the issuance of the Bracken Report, a complaint was filed with the Board, and these proceedings were initiated. Settlement Stabilization Plan for the Fish Residence Roger Jeffery opined that the Plan failed to meet required engineering standards. The parties agree that when a structure, such as the Fish Residence Project, is initially built, the loads are directly transferred to the foundation, which then transfers the loads directly and uniformly as a continuously supported structure to the underlying soil. However, when, as occurred in this case, the structure’s loads are no longer transferred directly and uniformly to the ground through the foundation, but are transferred through pins which underlie the foundation, the foundation itself now acts as a beam or beams and is subject to the stresses applied to the beams. Respondent asserted that the foundation load would remain continuous, and therefore stable, since grouting had been poured under the Fish Residence to consolidate and stabilize the soils. However, Respondent’s plan did not call for grouting to be used. Moreover, according to the Bracken Report, no grouting was ever placed under the Fish Residence, even though it was called for in the CFTL Report to stabilize the structure. Respondent’s failure to perform a final inspection resulted in an inaccurate assumption and opinion. Respondent’s claim that grouting placed in the void under the structure reconstituted the original soil conditions is rejected, especially in light of the fact that Respondent also analyzed the pins and foundation in a beam configuration--a simple span beam. Further, Respondent’s analysis must be discounted because the calculations justifying his conclusion that the structure was adequately supported was performed in December 2013, well after these proceedings commenced and more than five years after the Plan had been created by Respondent. As a result of the changed structural support system (from ground support to pins), the position of the pins is critical to the stability of the structure. If the pins are too far apart for the strength of the foundation’s materials to accommodate the foundation, now acting as a beam or beams, the foundation will be overstressed. Cracking, at a minimum, or collapse, at a maximum, can occur. Cracking or collapse can occur because the concrete slab foundation used at the Fish Residence does not have any existing top reinforcing steel in it. When asked if perhaps reinforcing steel might have been placed within the slab itself, Mr. Jeffery stated he had never seen such use of steel in over 40 years. No evidence to support the steel within the slab theory was presented. When the newly installed pins become the structural support, a negative bending moment is introduced to the top of the foundation, now acting as a beam. The top of the foundation is made only of concrete, which has little ability to resist the induced negative moment. As a result, deflection, racking, and ultimate failure will be the result if the pin placement and the spans created by the placement are inadequately designed. Respondent’s after-the-fact calculations do not address this issue. Using a continuous beam analysis, the preferred method to evaluate the beam/pin assemblage design in structures like the Fish Residence, the spacing of the pins (usually ten feet apart) designed by Respondent coupled with the loads generated by the foundation and the lack of reinforcing steel in the top portion of the foundation would result in stress that would exceed the strength of the concrete and, at a minimum, the concrete would eventually crack. Dr. Ahmed Said, Respondent’s expert, agreed with this conclusion. Even using a simple beam analysis, the design method Respondent testified he used and that Dr. Said agreed was commonly used, movement, resulting in cracks at the foundation slab, would occur. Again, since no reinforcing steel exists at the top of the slab, as a matter of simple physics, the concrete would have to respond to the deflection that would occur at the bottom of the foundation and, concrete being weak, would likely crack or worse at the top. Respondent provided no persuasive rebuttal to Mr. Jeffery’s analysis. First, Respondent claimed that elevations taken at the site in 2013 showed minimal deflective movement, proving the Plan design was sufficient. However, Mr. Jeffery noted that subsequent elevations taken at the completed structure would have little meaning regarding the adequacy of the design since: the design stands alone and is not affected by how the contractor implemented it; and no one could know whether the design, as constructed, would withstand the required stresses until it was subjected to full design loading, which would have to include the full wind loads to which the structure was designed. There is no evidence the structure was ever subjected to such stress in the period between its construction in 2008 and the later recorded elevations. Next, Respondent claimed the 3-foot “spreaders” attached to the pins would reduce the span of the foundation acting as a beam and thus would overcome the lack of reinforcing steel in the top of the foundation and the resulting overstress. The problem with this assertion is that the Plan does not call for “spreaders” to be placed in the design by any notations that are readily and universally cognizable. Respondent admitted that the symbol regarding the use of the spreaders was agreed to only between Champion and him, and was not included in the Plan. However, even if the notations used by Respondent could be interpreted as calling for the use of the “spreaders,” the “spreaders” would not materially impact the fact that the foundation, acting as a beam, would be overstressed, since a negative moment would still exist due to the lack of reinforcing steel at the top of the foundation. Finally, Respondent asserted that Mr. Jeffery’s analysis was flawed since Mr. Jeffery had assumed the Fish Residence was a masonry structure whereas Respondent claimed the structure was a wood frame covered with a stucco exterior. This issue is confused by the fact that both the CFTL and Bracken Reports, upon which Mr. Jeffery relied, both stated the Fish Residence was a masonry structure, although the CFTL Report notes the structure was initially constructed as wood frame. In any event, Mr. Jeffery testified that regardless of the masonry versus wood frame question, the structure would still be overstressed. Changing the construction from masonry to wood frame/stucco veneer might lessen the overstress, but not materially. In addition to the overstress created by failing to address the induced negative moment at the top of the foundation, Respondent’s design also resulted in a shear load which exceeded the maximum allowable under the American Concrete Institute 318 Concrete Code; and, since that code is incorporated into the Florida Building Code (“FBC”), the requirements of the FBC as well. The shear load factor is especially relevant since Respondent did not assure that the pins would not be placed under windows and doors where this issue is critical. Respondent did not address the shear issue as it applied to windows and doors in his after-the-fact calculations. The Plan is also deficient since it did not indicate the placement of windows and doors in the Fish Residence Project. By not doing so, the pins, when put in the ground, could be placed underneath these internal spaces which do not then form a continuous roof/wall/foundation assembly. If that occurred, and it apparently did in the Fish Residence on four occasions, the shear problem described above is exacerbated, since at either side of a door or window a point load is created and the shear stress increased. The Plan also fails to include required information. While the Plan calls for the use of a “FastSteel” product, the Plan does not include any product specification number or the strength of the material to be used. Although Respondent stated that the contractor, based upon its experience, knew what was intended, ultimately Respondent admitted that the required information was not in the Plan. Similarly, the Plan did not include the design loads and criteria used in the design and provided no building codes and standards. Respondent admitted the Plan lacked this required information. The missing information is important. Only by including such information on design documents can the engineer adequately communicate to the reviewing building code plans examiner or a contractor what the design engineer intended. By not including this required information, the reviewer can be uncertain as to whether the engineer used the correct loadings or designed the structure in accordance with the correct edition of the building code. Similarly, failing to provide sufficient information concerning the products to be used may lead a contractor to utilize the wrong product during construction. The Plan was submitted to Pasco County for issuance of a permit. The county building department issued a permit for the work to be performed. Mike Mosher of Champion believed the Plan included all the specifications he needed to identify the components to be used and the manner in which the work was to be performed. He also testified the work was completed consistent with the Plan. The June 10, 2008, Certification Letter Respondent issued the June 10, 2008 Certification Letter (“Letter”) under seal to his client before he completed the inspections necessary for the conclusions in the Letter to accurately reflect the opinions contained in it. Both Respondent and his client, Champion, agree that since the client had been denied access to the Fish Residence Project, no final inspection of the site by Respondent ever occurred. As a result, Respondent admitted that, when he signed, sealed, and issued the Letter, the engineering services, upon which the certification in the Letter was based, had not yet occurred. The evidence proved that Respondent’s last appearance at the Fish Residence Project occurred on or about May 5, 2008, and that most of the work done at the site occurred after that date with the final construction finishing on or about May 30, 2008. As a result, the conclusions and opinions contained in the Letter were not based upon accurate and contemporaneous engineering analysis. Since the Letter purports to be grounded in engineering inspections, the statements in the Letter were not fully based upon the services Respondent actually provided. While not entirely clear from the evidence and testimony, had Respondent had the ability to perform a final inspection, he would have had the opportunity to discover several deficiencies in the construction. The Bracken Report detailed several deficiencies and non-conformances with the Remediation Plan. These deficiencies included: 1) failure to drive 5/6ths of the pilings to the depth prescribed by the notes to the Plan; a large number of pins found beneath door and window openings; mis-installation of pins and pin assemblages; and 4) no grouting placed in the ground although Respondent intended that grouting be used. Respondent agreed that at least some of the Bracken Report conclusions were warranted. Respondent asserts that, although the Letter was issued prematurely, Respondent should not be held accountable since the Letter “never went public.” This contention is rejected. The Letter was a final engineering report/certification and, upon issuance to Respondent’s client, Champion, was fully subject to all engineering standards, rules, and statutes. Since the Letter contained conclusions that were inaccurate and based upon information that was not collected under Respondent’s direct supervision, issuance of the Letter constituted negligence and misconduct in the practice of engineering. Respondent’s Prior History of Discipline Respondent has previously had discipline imposed. The instant case is the first in more than 40 years of Respondent practicing engineering that involved a subsidence remediation plan. Respondent’s first prior discipline was in FEMC Case No. 00-0086. In that case, Respondent was hired to correct building code issues identified by a county building department. The drawings he made violated the building code requirements, contained deficiencies, and were not in compliance with the standard practice of engineering. Respondent proceeded to hearing without benefit of legal counsel. A final order was entered by the Board reprimanding his license, fining him $1,000, plus costs of $302.93, placing him on probation for one year, and requiring he complete a course in professionalism and ethics while on probation. Respondent’s second prior discipline was in FEMC Case No. 01-0079. That matter was based upon drawings that were dated February 16, 2001. Respondent was not represented by counsel in that proceeding. In that proceeding, no proof was presented that the structure depicted in the plans by Respondent was ever built. Therefore, no direct risk of harm to the public was proven. Respondent entered into a Settlement Stipulation in that matter which was approved by the Board of Professional Engineers. He agreed to pay a total administrative fine of $7,000, plus $316.67 in costs and receive a reprimand on his license. He also received a one-year suspension of his license, followed by two years’ probation, and continuing education requirements. The other instance of discipline imposed against Respondent was in FEMC Case No. 2004037005. That complaint arose from plans that were signed by Respondent in June 2004. He was charged with signing plans he had not personally prepared or were not prepared under his supervision. Respondent entered into a Settlement Stipulation in that case that was approved by the Board. He paid a $5,000 administrative fine and costs of $750; received a reprimand on his license; received two years of probation; and was required to make detailed reporting to the FEMC during the probationary period. No additional evidence of prior disciplinary matters was offered other than the three cases described above.

Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent Oliver Turzak’s Professional Engineer license be reprimanded, and that the license shall be suspended for a period of one year. Upon termination of the suspension, Respondent shall be reinstated under terms and conditions of reinstatement as the Board determines are appropriate, including two years of probation with terms the Board deems appropriate. Respondent shall also be fined $1,000 per count ($2,000 total fine). Finally, Petitioner shall be entitled to assess costs which are related to the investigation and prosecution of this case, other than costs or fees associated with an attorney’s time, as provided in section 455.227(3), Florida Statutes. DONE AND ENTERED this 6th day of May, 2014, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2014. COPIES FURNISHED: Zana Raybon, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303 Michael Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 David P. Rankin, Esquire Law Office of David P. Rankin, P.A. 18540 North Dale Mabry Highway Lutz, Florida 33548 John Jefferson Rimes, III, Esquire Florida Engineers Management Corporation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303

Florida Laws (11) 120.569120.5729.001455.227471.005471.025471.031471.033471.038553.73627.707
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