The Issue The issue to be determined is whether Respondent violated Section 471.033(1)(g), Florida Statutes (2006), and Florida Administrative Code Rule 61G15-33.003(2), and if so, what penalties should be imposed?
Findings Of Fact The Florida Board of Professional Engineers is the administrative agency charged with the licensing and regulation of engineering pursuant to Section 20.165(4)(a) and Chapters 455 and 471, Florida Statutes. At all times material to this proceeding, Respondent was, and remains, a licensed professional engineer, having been issued license number PE 15252. In or about March 2007, Respondent prepared, signed and sealed plans for a project to remodel an existing building for use as a church. Respondent was the only engineer to sign and seal the church plans, and no limitation on his responsibilities as engineer of record were disclosed on the plans. Petitioner's Composite Exhibit 1 consists of three sheets of plans related to the church project: 1) the structural plan, labeled "S"; 2) the existing floor plan, demolishing floor plan, and new floor plan, labeled "A-1"; and 3) the electrical lighting recepts plan and plumbing plan, labeled "E,P." The S sheet contained drawings for the foundation plan, the platform framing plan, and the framing layout plan, along with detail sections for each. The S sheet contained notes for the contractor, and design criteria for structural material. Petitioner makes no claims that there are deficiencies in the structural plans. Sheet A-1 contains drawings for the seating plan, the new floor plan, and the existing floor plan/demolishing plan, as well as a drawing of the typical interior wall section. Sheet A- 1 includes a box listing the scope of work to be performed, and a separate listing of the applicable codes and code summary. Included in the listed applicable codes are the Florida Building Code, 2005 revision; the Florida Plumbing Code of 2004; the National Electric Code 2005; the Florida Mechanical Code 2004; and the Florida Fire Prevention Code 2004. The plans specify that the building will be used as a church, with an occupancy load of 127. Sheet E,P contains drawings for the new plumbing plan, toilets layout, existing water heater detail in the attic; the sewer riser plan; and the electrical lighting and recepts plan. There are work notes for both the plumbing and electrical work, as well as an electrical legend. The electrical plans do not include an electrical riser diagram, and contain no information as to the amount of electrical power coursing through the structure. There are also no load computations or load summary or circuitry reflected on the plans. It cannot be determined from the plans how much load was used prior to the renovation and how much load will exist afterwards. No information is provided to demonstrate how power is delivered to an HVAC unit or water heater, even though the units themselves are shown on the design. The plumbing plans do not include any information regarding the location of a cleanout for purposes of maintenance of the sewage system. Respondent did not include this information because there was already a cleanout in place for the building that was not being disturbed. The plans signed and sealed by Respondent do not contain any mechanical plans. Respondent claimed that mechanical design was beyond the scope of his services and that he discussed this with his client. However, the plans themselves reference the Florida Mechanical Code as being applicable to the plans and nothing expressly excludes mechanical work from the work to be performed. There is no mention in the plans for the provision of "outside air" to the users of the structure. The plans were submitted to and reviewed by the City of Jacksonville permitting office, and were approved for permitting. All required inspections were conducted and passed.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Professional Engineers enter a Final Order finding that Respondent is guilty of violating Section 471.033(1)(g), Florida Statutes (2006), and Florida Administrative Code Rule 61G15-33.003(2). It is further recommended that Respondent be reprimanded, fined $1,000, that his license be placed on probation for a period of two years, and that costs be assessed pursuant to Section 455.227(3), Florida Statutes. DONE AND ENTERED this 20th day of January, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 20th day of January, 2010. COPIES FURNISHED: John Jefferson Rimes, Esquire Board of Professional Engineers 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303 Kamal Yazji, P.E. 5488 River Trail Road, South Jacksonville, Florida 32277 Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether Respondent negligently practiced engineering in the preparation of construction plans for a residential structure and airplane hanger.
Findings Of Fact At all times pertinent to these matters, Respondent has been a licensed engineer in the State of Florida, having been issued license number PE 37862. Respondent is the engineer of record for the residential and airplane hanger project (Rutman project). On Sheet 6 of 8 of the drawings prepared for the Rutman project, Respondent failed to reference sections or details found in the plan for the project. Specifically, Sheet 6 indicates the floor truss layout for the ground and second floors, but fails to indicate what the framing members are supported upon, a very significant fact, in that one who is reading the plan would not be instructed in how to construct that portion of the work. On Sheet 5 of 8, which indicates the layout of the framing members of the roof, no specific information is provided showing how to construct, support or connect the members and no reference is made to any other parts of the plans. Respondent's drawings fail to specify or indicate anywhere on the plans the proper reinforcing for the masonry column. On Sheet 2 of 2 - Hanger, and on Sheet 1 of 3 - Floor Plan, Respondent has called for a 24-inch by 24-inch reinforced masonry column that supports a W24 x 55 Steel I-beam that is 48 feet 8 inch long. There is no specification for column ties, which are reinforcing bar loops that are to be placed around the vertical steel within a column, as required by the American Concrete Institute's Code (ACI) provision 530. ACI 530 is used by all engineers in Florida that design masonry columns. These technical codes for concrete have been provided by ACI since 1904. ACI 530, Section 5.9.1.6(a), relating to lateral ties, provides that longitudinal reinforcement shall be enclosed by lateral ties at least 1/4 inch in diameter. Respondent's drawings fail to provide the required lateral ties. According to ACI 530, Section 5.9.1.4, vertical column reinforcement must not be less than .0025 times the nominal area of the column or approximately 1.44 square inches of steel. Respondent's drawing provides only 1.24 square inches of steel.
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 reprimanding Respondent for negligence in this matter, and placing him on probation for a period of two years. DONE AND ENTERED this 28th day of October, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 28th day of October, 2003. COPIES FURNISHED: David P. Rankin, Esquire The Law Offices of David P. Rankin, P.A. 14502 North Dale Mabry Boulevard, Suite 300 Tampa, Florida 33618 Douglas Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303 Nancy Campiglia, General Counsel Department of Business and Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulations 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267
The Issue The legal issue in this case is whether Respondent, as prime engineer of record for the owner, was negligent in the practice of engineering because he drafted performance specifications for a specialty contractor to hire an experienced wet sprinkler fire system engineer, who would, as the delegated engineer to the prime engineer, design, sign and seal a wet sprinkler fire system to be submitted to the prime engineer for his final approval.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received in evidence, the parties' stipulations of facts, and the entire record complied herein, the following relevant and material facts are found: Petitioner is charged with regulating the practice of engineering. See Chapters 455 and 471, Florida Statutes. Petitioner, in this case, is also charged with providing administrative, investigative, and prosecutorial services to the Board. See Section 471.038(3), Florida Statutes. Respondent is and has been at all times material hereto a licensed professional engineer in the State of Florida. He was first licensed in Florida in 1984, and his license number is 35071. His areas of engineering discipline include mechanical, electrical, and chemical engineering. Based upon his qualification and knowledge in the discipline of chemical engineering, Mr. Newton routinely designed dry fire systems which are traditionally used in construction of school projects. Mr. Newton is also licensed in Georgia, South Carolina, Texas, and Louisiana. In the 18 years Mr. Newton has been licensed as a professional engineer, this proceeding is the only disciplinary action taken against his license. Mr. Newton's professional affiliations include American Arbitration Association, where he acts as an arbitrator involving construction disputes. Mr. Newton provides engineering and related services as principal engineer and president through Engineering Matrix, a St. Petersburg-based engineering company he formed in 1985. Engineering Matrix regularly employs approximately 30 persons, consisting of engineers and technical support staff. The number of employees may increase up to 35 or more persons when business demands additional services. Approximately 40 percent of Engineering Matrix's past and present work is education-related and/or school projects from elementary and middle schools up to and including the university level. At the time of this proceeding, Engineering Matrix had at least 10 to 15 school projects on their boards, about half of which are new schools, all located within the area of Sarasota, Manatee, and Pinellas Counties. The Manatee County School Board (Owner) let for bid two elementary school construction projects. The Owner selected a Design Team consisting of architects, Allen Architects, Inc. (Allen Architects); a prime engineer, Engineering Matrix, Inc. (Engineering Matrix); and two construction managers, Creative Contractors for Ballard Elementary School and Willis A. Smith Construction, Inc., for Samoset Elementary School. Engineering Matrix, as the project's prime professional engineer, was responsible for all matters relating to electrical, mechanical, and fire protection engineering issues. At some undetermined point in time during finalization of the design phase of the projects, the Owner changed from the original proposed dry fire system to a wet sprinkler fire system. The Owner's design change resulted in Respondent's proposal that Engineering Matrix, his company, could accommodate the change for additional compensation over and above the contract price. The Owner rejected Respondent's proposal. As the prime engineer for the projects, Mr. Newton prepared performance specifications for a non-engineering specialty contractor to hire an experienced wet sprinkler fire system engineer. At the time Mr. Newton prepared the performance specifications, the identification of the wet sprinkler fire system engineer was not known. The performance specifications directed the wet sprinkler fire system engineer to design the wet sprinkler fire system documents. He would sign and seal the design documents and submit them to Mr. Newton for review and ultimate approval. Two fire protection specialty contractors were hired. James Curtis, P.E., was hired and designed the system for the Ballard Elementary School project. Frank B. Williams, P.E., was hired and designed the system for the Samoset Elementary School project. Each engineer signed, sealed, and submitted his respective designs to Mr. Newton for his review and approval. Both approved wet sprinkler fire systems were permitted by Manatee County's building department, approved by the county's fire marshal's office, installed and thereafter passed inspection. There is no evidence of record that a complaint was made regarding the wet sprinkler fire systems installed on these two projects. During or near the completion of the school wet sprinkler fire system construction, a disappointed bidder filed a complaint with the Board. As a result of the complaint, the Board mailed to Mr. Newton a letter of inquiry to which Mr. Newton made a written reply. Mr. Newton and Mr. Allen have worked together professionally on construction projects for over 15 years beginning in 1985. As a consequence, they have developed a comfortable and confident professional working relationship. Based upon their long relationship and their past successes, they will often seek the other's availability when projects are posted for bidding. Allen Architects, by and through Mr. Allen, was in direct contract privy with the Owner, so also were the construction managers, Creative Contractors of Clearwater, Florida, for Ballard Elementary School and Willis A. Smith Construction, Inc., for Samoset Elementary School. The Owner determined that a wet sprinkler fire system would be more economical than a dry fire system and directed Allen Architects to incorporate a design change. The original design plans included a dry fire system which Mr. Newton expected he would design as he had on other school projects.2 At this point in the design process, as the prime engineer and engineer of record for mechanical and electrical matters, Mr. Newton prepared performance specifications requirements for approval of a wet sprinkler fire system engineer. This 12-page document included requirements that the system conform to Sections 13 and 14 of the National Fire Protection Association (NFPA) standards.3 Mr. Newton's testimony reflects his sincere and professional efforts to comply with the design change and with his understanding, past experience, and interpretation of the spirit of his professional obligations as prime engineer for the project. Mr. Newton's performance specifications required that the specialty contractor provide a complete, approved wet sprinkler fire system, designed by a contractor who currently possessed five years of continuous experience, and that shop drawings, hydraulic calculations, etc., be signed and sealed by a Florida registered engineer and submitted to Mr. Newton for his final approval before construction. In Section B of his performance specifications document, Mr. Newton included the following: "Pursuant to FS 471.033(2) and Rules 61G15-30 and 32, the Fire Protection Contractor shall be required to provide detailed fire protection construct drawings to be signed and sealed by a Florida Registered Fire Protection System Design Engineer acting as the delegated Engineer to the Prime Engineer as part of this scope." This section of the performance specifications is the subject of the Board's Administrative Complaint. In accordance with Mr. Newton's performance specifications, signed and sealed wet sprinkler fire system designs were prepared. One system was prepared by Creative Construction and one system was prepared by Willis A. Smith Construction, Inc. Both systems were submitted to Engineering Matrix, approved, and installed in Ballard and Samoset Elementary Schools. Mr. Curtis and Mr. Williams, experienced professional engineers in wet sprinkler fire systems, testified without contradiction, that the language employed by Mr. Newton in Section B herein above regarding the wet sprinkler fire system specifications is common in the industry regarding construction and engineering practices in the local Manatee-Sarasota areas. Neither Mr. Curtis nor Mr. Williams experienced difficulty or confusion in understanding his engineering tasks. The Board's expert, Mr. Galvez, found no deficiency in the wet sprinkler fire system engineering for either the Ballard Elementary School project or the Samoset Elementary School project. This fact confirms the reasonable assumption that two experienced engineers understood the written communication from Mr. Newton without the benefit of face-to-face communication with him prior to their designing the wet sprinkler fire system for these two projects. All witnesses agreed that there are three traditional and accepted industry methods engineers have used on projects: the design approach in which the engineer of record prepares the plans and specifications, provides those documents to a contractor who prepares shop drawings that are then sent back to the engineer of record for compliance specification review and approval, and if approved, documents are provided to the construction engineer for installation; (2) the performance approach in which the engineer of record prepares a set of complete, clear and sufficient criteria and provides those criteria to a contractor who prepares shop drawings that are returned to the engineer of record for compliance specifications review and approval, and if approved, then returned for construction installation; and (3) the design-build approach in which a company, possessing a certification of authorization to provide engineering services via a contracted professional engineer, its employees/consultants, provides both design and installation of engineering projects for the company. The witnesses further agree that none of the three approaches, however, are mandated by Florida Statutes or by administrative rule. Significant is the fact that the parties agree there are no reported cases that have held that an engineer of record cannot delegate fire protection engineering design entirely to a fire protection engineer or fire protection engineering company. Equally as significant is the fact that the parties agree that no reported case has held that an engineer of record cannot delegate any entire subset of a project to another engineer licensed in the delegated subset area of engineering. The effect of this significance is that it compels the Board to establish an accepted, recognized, and enforceable industry standard and prove that Mr. Newton's conduct violated that standard. Mr. Newton chose not to use the traditional design approach, the performance approach, or the design-build approach. He required the specialty contractor to seek and hire only a registered engineer, with specific experience in the engineering discipline of wet sprinkler fire systems. The selected engineer was required to design a wet sprinkler fire system. Mr. Newton's method of delegating the engineering responsibility to design a wet sprinkler fire system for his approval as the prime engineer resulted in a wet sprinkler fire system that was completed, installed, inspected, and found without fault at both the Ballard and the Samoset Elementary School projects. From design to completion, Mr. Newton was the prime engineer for the projects. In that capacity, Mr. Newton had responsible charge for the wet sprinkler fire system from its design to its installation. First, the design was required to be drafted only by an experienced wet sprinkler fire system engineer who would sign and seal his professional work product. Mr. Newton retained sole authority to review, suggest change, and, finally, approve the work product of the engineer of record prior to construction. The evidence of record reflects that at no time during the design to approval and construction process of these two projects was Mr. Newton not in responsible charge for the wet sprinkler fire system by maintaining final engineering authority. Petitioner's expert, Mr. Galvez, a licensed engineer since 1983, has extensive experience in fire protection as an employee of a professional engineering company, Schirmer Engineering, in Miami, Florida, and his professional industry experience has been restricted to the South Florida area. He is a member of the National Fire Protection Association; the American Society of Heating, Refrigeration, and Air Conditioning; Society of Fire Protection Engineers; and the American Society of Mechanical Engineers. Mr. Galvez, however, is not certified by examination in the sub-discipline of fire protection engineering. He has never delegated a wet sprinkler fire system to another engineer, but has had the discipline continuously delegated to him by his employer. In Mr. Galvez's opinion, Mr. Newton's written performance criteria to the specialty contractor to hire an experienced wet sprinkler fire system engineer to design, sign and seal plans did not provide enough direction in the field of delegated engineering because it was an improper delegation of engineering obligation and responsibility. Mr. Galvez opined that Mr. Newton improperly delegated the design responsibility to a non-engineering contractor. Second, in writing the performance specifications, Mr. Newton made himself the "single point of contact," a standard established by the National Society of Professional Engineers. According to Mr. Galvez, following Mr. Newton's "single point of contact" position as a result of writing the performance specifications, the moment Mr. Newton inserted the non-engineering specialty contractor between himself and the design engineer in the performance specifications, he violated the National Society of Professional Engineers' "single point of contact" standard. Mr. Galvez's opinion, however, is nullified by his acknowledgment and admission that the "single point of contact" standard enacted by the National Society of Professional Engineers does not govern Mr. Newton's professional engineering conduct in Florida. Mr. Galvez's second opinion of a "delusional standard"4 violated by Mr. Newton suffers a similar fate as his first "single point of contact" opinion standard. Mr. Galvez further opined that the method employed by Mr. Newton, delegation from himself to (1) a contractor, (2) who would hire an engineer to design, sign and seal, and (3) return to the contractor to (4) return to Newton for his review and approval, was a "delusional" delegation of the "single point of contact" engineering responsibility of the prime engineer of record for these projects. Again, Mr. Galvez's standard of "delusional" delegation is not found in the Florida Statutes nor in the Florida Administrative Code nor has it been accepted, adopted, and reported as an engineering standard by a Florida court. The record contains no evidence of any recognized professional engineering organization in Florida that recognized a standard of "delusional" delegation by a professional engineer. There was no evidence presented at the hearing which would suggest Mr. Newton acted on a false belief, in spite of invalidating evidence to the contrary in drafting the performance specifications. Viewed most favorably, the Board, by the presentation of the opinion testimony of Mr. Galvez regarding "standards" for the delegation of engineering design responsibilities from one engineer to another engineer, has failed to establish by clear and convincing evidence that Mr. Newton was guilty of negligence as alleged by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Board of Professional Engineers enter a final order finding Respondent, Stanley P. Newton, P.E., not guilty of negligence in the practice of engineering as alleged in the Administrative Complaint filed in this cause. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 20th day of December, 2002.
Findings Of Fact The Respondent, Thomas J. Embro holds two licenses issued by Petitioner. They are RG0021774, registered general contractor, and RC0021647, registered roofing contractor. He has held these licenses since 1974. Sometime in the fall of 1979 Respondent was hired by Richard F. Rogers to replace the roof on a residential structure located at 4119 N.W. 12th Avenue, Gainesville, Florida. At that time the house was for sale. Mr. Rogers, who is a real estate agent, wanted the roof replaced in anticipation of a Veterans Administration financed sale of the house to Mr. William Schrader. Prior to beginning work on the roof Mr. Embro did not obtain a building permit from the City of Gainesville for the job. On October 1, 1979 Mr. Schrader made a complaint to the Building Division of the City of Gainesville. His complaint stated that the roofing work performed by Respondent was unsatisfactory. Mr. Al Davis, a building inspector employed by Gainesville, reviewed the city records and determined that a permit had not been issued to Respondent for reroofing Mr. Schrader's house. On October 3, 1979 Mr. Davis wrote a letter to Mr. Embro which stated in its entirety: October 3, 1979 Mr. Thomas J. Embro 3816 SW 18 Street Gainesville, Florida Dear Sir: We have received a complaint from Mr. Bill Schrader of 4119 NW 12th Avenue on the reroofing that you performed on his residence. After receiving the complaint I investigated out records and the work performed by your company and found the following violations: Our records indicate that a permit was not issued to reroof the above address, this is a violation of Section 106.1 of the Southern Standard Building Code. The roof material was not installed correctly. Shingles shall be installed in accordance to manufacture [sic] re- quirements and some parts of the roof are too flat for shingles. Interior damage has been caused by the roof leaking from not installing the shingles as required. The above violations shall be corrected within 10 days from receipt of this letter. Your compliance will make further action unnecessary. Sincerely, /s/ Al Davis Building Official cc: Mr. Bill Dow, State Investigator Mr. Bill Schrader Mr. Embro applied on October 25, 1979 for a permit from Gainesville for the work at 4119 N.W. 12th Avenue. The permit was issued on December 6, 1979. It is not unusual in Gainesville for a contractor to begin a construction job before the appropriate permit is applied for or issued. When this is not a frequent practice of a particular contractor the City imposes no penalty. If the contractor habitually begins construction without permits, the City imposes a penalty by charging him double the regular permit application fee. Mr. Embro was not charged a penalty by the City in this case. In the course of his contracting business Mr. Embro frequently asked his wife to make permit applications for him before he begins work. In this case he believed that she had applied for the appropriate permit. The City of Gainesville allows persons other than the contractor to apply for a building permit on behalf of a contractor if the contractor has first filed an authorization with the City designating an agent. Mr. Embro filed such an authorization on February 13, 1980 for his wife to be his designated agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Florida Construction Industry Licensing Board enter a final order dismissing the Administrative Complaint against Thomas J. Embro. DONE and RECOMMENDED this 16th day of November, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 16th day of November, 1981.
