The Issue Whether Respondent, a registered general contractor, (1) unlawfully and willfully committed fraud and theft, violated the Fictitious Name Statute, and violated Municipal and County Contractor Licensing Ordinances, and (2) violated other provisions of the Construction Industry Licensing Law relating to the name under which a qualifying agent may engage in business.
Findings Of Fact At all times material hereto, Respondent was the holder of Registered General Contractors License No. RG0013533 issued by the Board to Respondent, d/b/a Deltec Construction Co. (Stipulation of counsel). Respondent is a fifty-five year old general contractor who has worked in construction for thirty-seven years, and has never been disciplined for misconduct associated with construction activities. (Testimony of Respondent) Respondent, at all times material hereto, did not qualify or license with the Board Trendway Construction Co., Trendway Construction Inc., or Trend- Tech Construction Co. (Testimony of Respondent, P.E. 1, 2, 3) Respondent's Business Activities in Daytona Beach, Florida On May 24, 1978, Respondent, d/b/a Deltec Construction Co., contracted with Darcy A. Vernier to assist him in the formation and operation of a corporation to be known as Trendway Construction Inc. In exchange for $8,500.00, Respondent agreed to provide a broad range of business assistance, expertise, training, and equipment to Trendway Construction, Inc. Vernier was designated General Manager and President of the new Company, and agreed to be individually responsible for its overall management. Although the long-term goal of the new Company was to perform general contracting, Vernier and Respondent envisioned that the Company would first gain necessary knowledge and experience by limiting its construction work to masonry and flat concrete construction projects. Profits were to be equally divided between Respondent (Deltec) and Vernier (Trendway), and, as subsequently amended, the Corporation was to be wholly owned by Vernier. (Testimony of Vernier, Respondent, P.E. 4) Prior to executing the contract, Vernier met with Respondent and discussed their proposed business venture on three separate occasions during a ten-day period. Vernier had his attorney review the contract prior to his signing, and fully understood its provisions. The proposed contract was modified, at Vernier's request, to ensure that Vernier would be the sole owner of the Corporation. (Testimony of Vernier) Prior to executing the contract, Respondent took Vernier to observe a masonry or flat concrete construction job in Ormond Beach, which he had recently completed d/b/a Deltec Construction Co. (Testimony of Vernier, Respondent) On July 6, 1978, pursuant to his contractual obligation, Respondent paid $250.00 for and obtained a Masonry Sub-Contractor's License, in Vernier's name, from the Building Department of the City of Daytona Beach. (Testimony of Respondent, Holmes, Vernier) Conflicting evidence was presented on whether, in order to do sub- contracting, masonry and flat concrete work within the City of Daytona Beach, a sub-contractor must also secure a certificate of competency or license from Volusia County under Ordinance 69-3. By stipulation, the testimony of Fred Holmes, Building Official with the City of Daytona Beach, was subsequently taken by deposition and submitted to determine this question. However, the testimony of Holmes is inconclusive, conflicting and unclear. (Testimony of Respondent, Vernier, Holmes, P.E. 7) Respondent did not represent to Vernier that Deltec Construction Co.'s licenses could be used by Vernier d/b/a Trendway Construction, Inc., and that no further licenses would be necessary. Vernier testified that Respondent made such representation, and Respondent denied it. Vernier's testimony is inconsistent with the express contractual provision which required Respondent to affirmatively secure "initial licensing" for Trendway Construction, Inc. Furthermore, Vernier's demeanor as a witness reflected a level of bitterness and hostility toward Respondent which may have influenced his recollection. (Since his construction company failed, Vernier had demanded Respondent return his money and filed a civil suit for such purpose.) In contrast, Respondent's unequivocal testimony on this question is buttressed by his consistent actions in securing an additional license for the Company from the City of Daytona Beach), and his subsequent action in attempting to secure a local license for another company under a contract markedly similar to the one between Vernier and Respondent, post. (Testimony of Respondent, Vernier, Garr, Fortner) Respondent was aware, however, that the Company would eventually have to acquire a license from Volusia County; he concluded, though, that his contractual obligations to secure "initial licensing" encompassed only the license required by the City of Daytona Beach. (Testimony of Respondent) Trendway Construction, Inc., was never organized as a corporation as envisioned by the contract between Respondent and Vernier. Soon after the contract was signed, serious business disagreements arose between Respondent and Vernier. Vernier, then, unilaterally moved the business, including its equipment, furnishings, office forms, and principal employee from Daytona Beach and relocated in another community. From the execution of the contract to Vernier's ultimate closing of the business, Respondent never received any profits from its operation, and his non-participation in the business operations was acknowledged by Vernier. During September or October, 1978, Vernier changed the name of the Company to Pelican Construction Co. During its existence, Trendway Construction was not registered as a fictitious name with the Clerk of the Circuit Court of Volusia County. (Testimony of Respondent, Vernier) Respondent's Business Activities in Ocala, Florida During September and October, 1978), Respondent operated a duly licensed masonry and flat concrete construction business known as Deltec Construction Co., in Ocala, Florida. (Testimony of Garr, Fortner, Respondent) On October 5, 1978, Respondent d/b/a Deltec Construction Co. contracted with Albert W. Latham to assist in the formation and operation of a corporation to be known as Trendway Construction, Inc. (In the Daytona Beach transaction, Trendway Construction Co. had never been incorporated by Vernier, and he had subsequently changed the Company's name, infra.) In exchange for $8,500.00, Respondent agreed to provide business assistance, expertise, training and equipment to Trendway Construction, Inc. Albert Latham was designated as General Manager and President of the newly formed Company, and agreed to be individually responsible for its general overall management. Although general construction was the Company's long-term objective, the parties invisioned that necessary knowledge and experience would be acquired by limiting their initial work to sub-contracting masonry and flat concrete construction projects. Profits were to be equally divided between Respondent and Latham, and 60 percent of the capital stock of the corporation was to be owned by Latham--the remaining 40 percent, by Respondent. (Testimony of Respondent, P.E. 13) On October 23, 1978, Trendway Construction, Inc., was officially organized and formed pursuant to the contract between Respondent and Latham. (P.E. 9) Under the contract between Respondent and Latham, Respondent was obligated to secure initial licensing for the new Company, Trendway Construction, Inc. Because Trendway Construction, Inc., was going to initially engage only in masonry and flat concrete sub-contracting work, the only license required was a certification of competency from the City of Ocala. Respondent made reasonable, diligent and earnest efforts to obtain the required certification from the City. First, he tried to apply for the license on behalf of Trendway Construction, Inc. But, since Latham owned a controlling interest in the Company, and was apparently considered its owner, City Building Department officials insisted that Latham must apply for the license on behalf of the Company. Respondent then obtained and delivered to Latham the necessary application forms and character reference letters, set up appointments for Latham at the Building Department, and repeatedly reminded him of the need to secure the local certification. Despite Respondent's efforts, Latham procrastinated, and failed to obtain from the City of Ocala the required license for Trendway Construction, Inc. It is probable that if proper application had been made for the license, it would have been issued to Latham d/b/a Trendway Construction, Inc., upon payment of the application fee and proof of insurance. (Testimony of Respondent, Garr, Fortner, P.E. 13) After formation of the Corporation, Respondent continued to provide assistance to Latham and Trendway Construction, Inc., but he did not dictate what construction work would be done or whore it would be undertaken. Latham directed two construction work crews and made those decisions. Nevertheless, Respondent warned Latham that no construction work should be undertaken within Ocala until the necessary City certification was obtained. (Testimony of Respondent) On October 24, 1978, Trendway Construction, Inc., poured a driveway slab for Herbert Adams at 2332 East Silver Spring Boulevard, Ocala, Florida, for $668.72. Adams dealt only with Jack Cook, an employee of Trendway, and neither knew nor had any dealings with Respondent. (Testimony of Adams, Garr) The name of "Trendway Construction, Inc.," has not been registered with the Clerk of the Circuit Court of Marion County, Florida. (Testimony of Respondent) Respondent did not attempt to mislead Latham by representing that Trendway Construction, Inc., could operate under Deltec's local or state licenses. (Testimony of Respondent) There was no evidence that Respondent mislead or misrepresented any material fact to Latham or failed to diligently carry out his obligations under their contract; neither was any evidence presented to show Latham was dissatisfied, in any manner, with Respondent's contractual performance. Respondent's Business Activities in Gainesville, Florida Respondent sold a construction business to Valentine Webber of Gainesville, Florida, for $8,500.00. (Testimony of Respondent)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board find Respondent Not Guilty of the charges contained in its Administrative Complaint, and that the Complaint be DISMISSED. DONE and ENTERED this 11th day of June, 1980, in Tallahassee, Florida. R. L. CALEEN JR., Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675
The Issue The issue presented for decision herein is whether or not the Petitioner is eligible to sit for the Professional Engineers examination.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. On December 12, 1983, Petitioner, Craig S. Smith, made application to the Florida Board of Professional Engineers to sit for the April, 1984 professional engineering examination. Respondent, Board of Professional Engineers, reviewed Petitioner's application in their meeting on February 19, 1984 and denied his reguest to sit for the April, 1984 examination. The basis for the denial was that Petitioner failed to qualify under the ten-year provision which requires ten years of experience in engineering pursuant to Chapter 471, Florida Statutes, and Rule chapter 21H, Florida Administrative Code. The Board determined that Petitioner did not satisfy the requisite experience in the areas of engineering, responsible charge and engineering design. Specifically, Respondent determined that Petitioner had 82 months of creditable service toward the 120 month requirement and no experience in the area of engineering design. Petitioner's application reveals that he was employed by Florida Testing and Engineering, Inc., 6784 Northwest 17 Avenue, Ft. Lauderdale, Florida from May, 1971 to May, 1973 in the position of a driller crew chief. His professional duties during that period include the following: subsurface investigations for foundation design; securing and classifying subsurface samples in accordance with standard procedures of ASTM and AASHTO; overall responsibility for drilling operations and sampling equipment (standard penetration tests using either split barrel sampler, shelby tube, hollow stem flight auger, steel casing, drilling mud and rock coring, when required). From May, 1973 to January, 1979, Petitioner was employed by the same employer but held the position of laboratory and field engineering technician. His specific job duties include various construction sampling, testing and inspection as follows: ASPHALT asphaltic design mixes conforming to Florida Department of Transportation and FAA criteria; quantitative extraction of bitumen from bitumen paving mixtures; bulk specific gravity of compacted bituminious mixtures; compressive strength of bituminious mixtures; sampling bituminious paving mixtures; sampling bituminious materials; (o) bituminious mixing plant inspections; coating and stripping of bitumen-aggregate; determining degree of particle coating of bituminous-aggregate mixtures: maximum specific gravity of bituminous paving mixtures; specific gravity of solid pitch and asphalt displacement; determining degree of pavement compaction of bituminous paving mixtures; resistance to plastic flow of bituminous mixtures using marshall apparatus; resistance to deformation and cohesion of bituminous mixtures by means of hveem apparatus. CONCRETE compressive strength of cylindrical concrete specimens; making and curing concrete compressive and flexural strength specimens in the field and laboratory; obtaining and testing drilled cores and sawed beams of concrete; flexural strength of concrete (using simple beam with third point loading); slump of Portland cement concrete; weight per cubic foot, yield, and air content (gravimetric) of concrete; (q) sampling fresh concrete; measuring length of drilled concrete cores; air content of freshly mixed concrete by the pressure method; securing, preparing and testing specimens of lightweight insulating concrete; air content of freshly mixed concrete by the volumetric method; checking approximate strength of hardened concrete by the Swiss hammer method; cement content of hardened Portland cement concrete; specific gravity, absorption and voids in hardened concrete; inspection and testing agencies for concrete materials as used in construction. SOILS investigating and sampling soils and rocks for engineering purposes; dry preparation of disturbed soil and soil aggregate samples for test; particle size analysis of soils; determining the liquid limit of soils; determining the plastic limit and plasticity index of soils; determining the field moisture equivalent of soils; moisture-density relations of soils using a 5.5 lb. rammer and a 12 in. drop; specific gravity of soils; moisture-density relations of soil-cement mixture; cement content of soil cement mixture; wet preparation of disturbed soil samples for test; moisture-density relations of soils using a 10 lb. rammer and an 18 in. drop; density of soil in place by the sand-cone method; the California bearing ratio, the line-rock bearing ratio; unconfined compressive strength of cohesive soil; permeability of granular soils (constant head) one-dimensional consolidation properties of soils; repetitive and nonrepetitive static plate load tests of soils and flexible pavement components, for use in evaluation and design of airport and highway pavements; determination of moisture in soils by means of a calcium carbide gas pressure moisture tester; bearing capacity of soil for static load on spread footings; density and moisture content of soil and soil- aggregate in-place by nuclear methods (shallow depth); classification of soils and soil aggregate mixtures for highway construction purposes; determining the Florida bearing ratio test (Florida Department of Transportation) determining the calcium carbonate content for base course materials (Florida Department of Transportation). AGGREGATES sampling stone, slag, gravel, sand, and stone block for use as highway materials; amount of material finer than 0.075 mm sieve in aggregate; unit weight of aggregate; voids in aggregate for concrete; organic impurities in sands for concrete; sieve analysis of fine and coarse aggregates; mechanical analysis of extracted aggregate; sieve analysis of mineral filler; specific gravity and absorption of fine aggregate; specific gravity and absorption of coarse aggregate; resistance to abrasion of small size coarse aggregate by use of the Los Angeles abrasion machine; soundness of aggregate by use of sodium sulfate or magnesium sulfate; clay lumps and friable particles in aggregates; lightweight pieces in aggregate; surface moisture in fine aggregate; reducing field samples of aggregate to testing size; total moisture content of aggregate by drying. MISCELLANEOUS percent of elongation, yield and tensile strength of steel members; compressive strength of hollow load bearing masonry units; inspection tests, including the inspection of pressure grout to insure proper distribution for foundation design; inspection and testing agencies for reinforced concrete culvert, storm drain and sewer pipe as used in construction; inspection and testing amenies for precast and prestress oiling members; From January of 1979 through January of 1982, Respondent held the position of supervisor for the same employer, Florida Testing and Engineering, Inc. During that period, he was in charge or was otherwise overall responsible for field and laboratory operations, prepared engineering reports, analyses, recommendations and design for various construction projects; Fort Lauderdale-Hollywood International Airport-Resurface Requisition No. 14905 and No. 29019 Fort Lauderdale-Hollywood International Airport- ADAP No. 06-12-0025-10 R/W and T/W Improvements and Resurfacing Fort Lauderdale-Hollywood International Airport - ADAP No. 06-12-0025-11 R/W and T/W Improvements and Resurfacing Key West International Airport - ADAP No. 06-12-0037-08 Fort Lauderdale Executive Airport Project No. 7155 City of Fort Lauderdale Parking Garage Project No. 7071 City of Fort Lauderdale 5 Ash Waste Water Treatment Plant Project No. 7642 From January of 1982 to the present time, Respondent formed his own company and holds the position as President of that firm (Eastcoast Testing and Engineering, Inc., 430 Northwest Flagler Drive, Fort Lauderdale, Florida 33301). Respondent is responsible for all phases of construction materials, testing, analysis, inspections, evaluations, quality control and quality assurance. The laboratory personnel and facilities of Eastcoast Testing and Engineering, Inc. has been inspected by the Cement and Concrete Reference Laboratory at the National Bureau of Standards. It is accredited by the Department of Commerce, National Voluntary Laboratory Accreditation Program for selected test methods of freshly mixed field concrete. Eastcoast was awarded the annual testing contract for the City of Fort Lauderdale during its first year of operation. During his tenure as an employee of Florida Testing and Engineering, Inc., Petitioner planned and implemented testing programs for the purpose of developing design criteria; implemented investigation and testing programs for the purpose of determining the cause of failures; prepared reports documenting material test data; and assisted in the preparation of reports for engineering evaluation under the guidance of a professional engineer. (See Petitioner's Exhibit No. 1.) For Petitioner's experience at Florida Testing during the period 1971 to 1973, Respondent determined that "zero time" was credited for that experience based on the Board's determination that Petitioner's work was more a "technician's job than engineering-related job." (Testimony of Board member William B. Bradley, Tr. page 16.) For Petitioner's experience during the period Nay, 1973 to January, 1979, Respondent allotted fifty percent or 34 of the 68 months experience that Petitioner served in that position. The Board determined that the "in-house testing" would have a lot more association with normal engineering procedures than Petitioner's earlier work. (Tr. 17.) The Board considered the technical testing and reporting thereof that took place in the laboratories was more responsible for engineering and, therefore, creditable as opposed to Petitioner's field work. (Tr. 17-18.) Again, for the period 1979 through 1992, Respondent gave Petitioner 59 percent credit for a total of 18 months of the 3 years in question. For the period 1979 through 1982, the Board determined that Petitioner was not essentially doing anything different but, rather, that he was "in charge of people now; he is preparing engineering reports here which I assume Mr. Winterholler signed." For that service, Petitioner was given credit for 18 of those 36 months. From the period of January, 1982 to the present time, the Board gave Petitioner 199 percent credit because, as President of his own firm, he would be more involved and would have more responsibility for the actions of his testing laboratory and, therefore, entitled to full credit for that time. (Testimony of Bradley at Tr. page 21.) Finally, Mr. Bradley determined that be saw no design engineering in the Petitioner's submissions because designing is "actually putting onto paper what's going to be there." (Tr. page 29.)
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 finding Petitioner eligible to sit for the next regularly scheduled Professional Engineers examination based on his compliance with the ten (10) year requirement of Subsection 471.013(1)(a)3., Florida Statutes. DONE and ORDERED this 30th day of October, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of October, 1984.
The Issue The issue in this proceeding is whether Respondent's engineering license should be disciplined for alleged violations of Chapter 471, Florida Statutes.
Findings Of Fact Michael V. Carr, P.E. is a licensed professional engineer in the State of Florida, holding license number PE0026675. He has been engaged in the practice of engineering for more than 15 years. Mr. Carr's area of expertise is in civil and structural engineering. He is not experienced in electrical or mechanical engineering. In 1989, Mr. Carr was employed as a full-time engineer and construction project manager by a local development and construction company. He also operated, on a part-time basis, an engineering business. The purpose of his part-time business was to offer engineering services to people who are experienced in the construction industry or are working with someone who is experienced in the construction industry and have to varying degrees developed their own plans. Respondent also would serve as the construction manager on those projects. During 1989, Respondent performed engineering services on four buildings owned by four different owners. All four buildings, involved relatively simple construction. Three of the buildings, Dr. Zummarraga's office, the Raulerson/Liberty National building, and Bay Podiatry Center, were designs comparable to residential structures. The Eleventh Street Office Park, while a larger structure, was a shell building and a simple structure, as well. Respondent was not retained to provide engineering for the construction of the interior of the Eleventh Street Office Park. In regards to all four buildings, the Respondent was not retained to provide plumbing, electrical or mechanical engineering services. Those items were left to the respective trades involved in the construction of the project. The limited plans submitted for the plumbing, electrical and mechanical aspects of the four buildings met the standard of practice in the Bay County area and were sufficiently complete for the various trades to perform its respective part of each project. Moreover, the simplicity of the construction plans for these four buildings meant that standard construction methods are provided in the Standard Building Code and/or are known in the industry. Such standard construction methods include detail on roof systems, spacing and connections, as well as live load requirements. Therefore, not as much detail needed to be provided on the plans for these projects. It was standard engineering practice in the Bay County area not to include such detail if it was adequately covered in the building code. In each instance, the owners of the buildings contacted Respondent to perform limited engineering services and to act as the construction manager on each project. Except for Mr. Raulerson, each owner had, prior to the time Respondent was hired, worked out some rough plans with a person qualified to create such plans and had a general idea of what type of building they wanted. Mr. Raulerson had drafted a fairly complete set of building plans. The goal of each owner of the four projects was to obtain a set of plans from what the owner already had developed which would at least minimally meet the local building code requirements sufficiently to allow a building permit to be issued for the construction project. In each instance, the Respondent's plans were submitted to the local building code enforcement agency which reviewed and accepted the plans. A building permit was issued for each building project. During the construction of each building, Respondent provided engineering inspections on each project. The plans submitted to the Bay County building department were not as-built plans and were never intended to be 100% complete plans since several of the owners had not made final decisions on a number of details such as roof line or plumbing facilities. 1/ Such open-ended plans were justified by the specific circumstances of each case and the professional judgment of Respondent, especially since Respondent acted as the project manager of the construction project. For purposes of clarity the facts and circumstances surrounding each building and any violations of Chapter 471, Florida Statutes, in regards to each building will be outlined individually. No alleged violations of Chapter 471, Florida Statutes, were established by the evidence unless it is specifically noted below. Zummarraga Building The plans for the Zummarraga building were signed and sealed by Respondent on October 24, 1989. Dr. Zummarraga had contacted Rich Koehnemann of Koehnemann Construction Company to build an office building for him. Mr. Koehnemann sent the doctor to Jeff Robinson, a draftsman in the Bay County area, to work up a draft of the office plans the doctor desired. The doctor or Mr. Koehnemann gave Mr. Robinson a rough sketch of the office building. Mr. Robinson informed the doctor that a structural engineer would have to be involved since the County would require the plans to have the signature and seal of an architect or engineer in order to obtain a building permit. At that point, Respondent was retained to help develop a set of plans for Dr. Zummarraga. Mr. Carr was hired to draft plans for an office building. He was not hired by Dr. Zummarraga to design a building for a specific site. Therefore, no substantial site information, site work, grading or contouring details were provided on the plans for the Zummarraga project. By passing drafts of plans back and fort, a set of plans was devised by Mr. Robinson under the direct supervision and control of Respondent. Therefore, Respondent is not guilty of improperly affixing his seal to the plans for the Zummarraga project. Later, after the structure's plans were finalized, the contractor determined that a detention pond would have to be designed for the site and a DER permit obtained for the pond. Respondent was retained to design a detention pond for the site and worked with DER to meet its extensive permitting requirements for such a pond. See Chapter 17-4, 17-25 and 17-512, Florida Administrative Code. That design was submitted to DER and a permit was issued for the detention pond. The original unsealed set of plans was amended for the building department. The specific details of the more rigid DER requirements, such as site work, grading and contouring, were not included on the plans filed with the building department and the owner did not contract with Respondent to include redundant detail on the building department's plans. Essentially, the building department's plans reflected the location of the detention pond and the area of the wetlands on the property which were subject to DER jurisdiction. Additionally, the plans contained some specifications which guided the contractor on pond requirements and in grading and contouring the site. These notes in conjunction with the DER permit requirements were sufficient to accomplish the building of the detention pond. Therefore, the desire of the owner and the avoidance of unnecessarily redundant detail between the DER permit and the building department's plans justified the lack of any extensive site work detail on the building department's set of plans for the Zummarraga project. The plans devised by Mr. Carr did not contain any architectural work which was not incidental to the engineering work he performed. 2/ Therefore, Respondent is not guilty of improperly affixing his seal to plans depicting work outside his field or of practicing outside of his field. In every instance, the plans of Dr. Zummarraga's office building were of sufficient detail to meet the building department's requirements for the issuance of a building permit, to allow the contractor to construct the project according to the Standard Building Code and to obtain a certificate of occupancy from the building department. Obviously, on these facts, the plans met the standard of practice in the community for the engineering services Respondent was hired to perform. Moreover, the lack of code related, electrical or mechanical details was justified under the facts and circumstances of the Zummarraga project and it was well within the professional judgment of the Respondent to omit such details given the standards of practice in the Bay County area. Raulerson/Liberty National Building The plans for the Raulerson/Liberty National building were signed and sealed by Respondent on July 31, 1989. Mr. Raulerson is an experienced developer in the Bay County area and acts as a general contractor on his own projects. Prior to hiring Respondent, Mr. Raulerson had been working with a local draftsman and Liberty National's architect to create a set of plans for the construction of Liberty National's office building in Bay County. Mr. Raulerson contacted Respondent on the advice of Bayne Collins, a local architect. Mr. Collins advised Mr. Raulerson that his plans were complete and all he needed was an engineer to check the wind loads. 3/ Mr. Raulerson gave Respondent the plans he had developed in conjunction with Liberty National's architect. Mr. Raulerson asked Mr. Carr to go through the plans and do a structural analysis to make sure that wind load requirements were met, that the building was structurally sound and that the building met the requirements for issuance of a building permit. Mr. Carr reviewed the plans and determined that they were an excellent set of plans for a very simple, sound and over-designed structure. He calculated the wind loads for the building and completed a structural analysis of the building. He also made one minor correction to the plans. Mr. Carr thought it ridiculous to put Mr. Raulerson to the expense of copying the Liberty National plans and essentially adopted the plans as his own. In this case, the fact that the plans were not drawn under Respondent's supervision is immaterial since the specific circumstances of the project did not call for such supervision in that the plans were drafted by experienced individuals. The plans were under Respondent's control at the point in time he was hired by Mr. Raulerson and the plans submitted to him for his review and approval, disapproval or amendment. Since copying the plans would be an unnecessary duplication of effort and Respondent did in fact exercise control over the plans by reviewing them before he affixed his seal to them, Respondent is not guilty of improperly affixing his seal to construction plans. The Raulerson/Liberty National plans did not contain any architectural work which was not incidental to the engineering services he performed. Anything in the plans which may be construed as "architectural work" was requested and specified by the owner to be in the plans. Therefore, Respondent is not guilty of improperly affixing his seal to plans depicting work outside his field or of practicing outside his field. The plans did contain a roofing plan which called for pre-engineered trusses. The detail on the plan simply read "pre-engineered trusses." The plans did not contain any requirements relating to who was to design the pre- engineered trusses or requirements for structural submittals on the trusses. In the Bay county area "pre-engineered trusses" means trusses from Fagans, the local truss manufacturer. It is common knowledge, that Fagan's has a licensed engineer on staff who designs all of its pre-engineered trusses from the plans submitted to him. The pre-engineered trusses all have pre-construction documentation available. Also, submittals for the trusses accompany the trusses at the time of their delivery. With such knowledge, it is unnecessary to specify any more information or requirements regarding the truss manufacture on the Liberty National plans. Similarly it was unnecessary to detail that submittals be given to the engineer since such submittals accompanied the trusses. The absence of any more detail was justified by the specific circumstances of the Liberty National project and well within the professional judgment of the Respondent given the nature of the pre-engineered truss market in the Bay County area and the fact that Respondent was the construction manager on the project. As indicated, Respondent also acted as the construction project manager and would visit the construction site about once a week. At the point in time Mr. Raulerson was going to order the trusses, he decided to change the pitch of the roof, Mr. Raulerson did not advise Mr. Carr of his decision. Mr. Carr discovered Mr. Raulerson's change when he visited the construction site. Fortunately, Respondent had the project file with him. With the project file information and the submittals from the truss manufacturer, Respondent checked the load conditions for the changed pitch. No structural concerns were presented due to the change in pitch of the roof. The Liberty National plans were not amended because Mr. Raulerson did not contract for them to be amended. The plans were not required to be amended under Chapter 471, Florida Statutes. Respondent did not commit any violations of Chapter 471, Florida Statutes, in regards to his actions outlined above. Bay Podiatry Center The plans for the Bay Podiatry Center were signed and sealed by Respondent. However, the date the plans were signed and sealed was not included on the plans. It was inadvertently omitted by Respondent. The absence of the date is a de-minimis violation of Chapter 471, Florida Statues, and does not justify the imposition of any formal penalties. However, Respondent should be given a letter of guidance for the violation. Respondent was not brought into the Bay Podiatry Center project until the final draft of the plans was to be done. Up until that time, Dr. Wilkerson, the owner of the project, had worked up preliminary drafts of the project in conjunction with his contractor and a local draftsman. They had developed a building with an attached carport. Mr. Carr did work directly with the draftsman on the final plan. Therefore, the plans were created under the direct supervision and control of Respondent. Since Respondent supervised and controlled the finalization of the project's plans at the crucial time and since the people involved in drafting the plans did not need more supervision and control, Respondent is not guilty of improperly using his seal. There was no clear and convincing evidence which demonstrated that Respondent performed any architectural work which was not incidental to the engineering services he performed. At the time Dr. Wilkerson desired to begin construction and obtain a building permit, he had not decided on a final roofing system. Therefore, the final plans called for the use of pre-engineered trusses and did not have a great amount of detail on a roof framing plan. There was some detail provided on the page of the plans detailing the wall section of the building. This page provided sufficient detail for a competent contractor to construct the building according to code. In fact, the building was so constructed and a certificate of occupancy was issued for the building upon its completion. Again the trusses would come from Fagans. Petitioner did in fact review submittals from Fagan's truss engineer for the pre-engineered trusses used on the Bay Podiatry Center. Included in those submittals was a roofing plan in which the trusses were numbered to fit the sequence shown in the roofing plan. Respondent made sure the trusses and roof system were structurally sound. However, the owner did not contract with Respondent to amend the building department's plans. Chapter 471, Florida Statutes does not require such an amendment. Given the truss market in the Bay County area, the knowledge of Respondent regarding that market, the fact that a decision regarding a roof line had not been made when the plans were sealed, and that it was appropriate to leave such a decision for later in the construction process, no further detail was required in specifying the roof system for this project. No clear and convincing evidence was presented that demonstrated Respondent was negligent in his specifications on the roof system. The only exception to the above was that Respondent did not specify the material of the trusses over the carport. Such information is not supplied by the Code and therefore must be supplied by the engineer. The oversight was caught by the contractor when he was preparing to order the trusses. The contractor contacted Mr. Carr. Mr. Carr determined what the appropriate truss material should be and informed the contractor. The inadequacy of the plans was resolved in less than ten minutes. The omission of such a detail is negligent on the part of Respondent and is a violation of Chapter 471, Florida Statutes. However, on these facts, the omission of the detail is minor. Most of the light, plumbing and mechanical fixtures were prelocated by the owner prior to the time Respondent was hired. Respondent did not purport to draft plumbing, electrical or mechanical plans in detail in the final plan. Except in one respect, the detail was sufficient to guide the respective trades in the performance of their work and no more detail was required. The only exception was that Respondent approved a special detail of the hub drain/trap primer which was not in accordance to code. Since Respondent provided a special detail which did not meet the code requirements and which was not demonstrated to be justified by the circumstances of the Bay Podiatry project, he is guilty of negligence in the drawing of the Bay Podiatry plans in that aspect. Given the fact that this is a very small error in a larger project and that the drain was put in according to code during the construction of the building, Respondent's violation is a minor one. Finally, the draftsman, without instructions from Respondent, put some plumbing and mechanical notes in the plans which clearly did not relate to the project. Respondent did not catch the inclusion of the notes and sealed the plans with the superfluous notes in them. However, it was obvious that the notes did not relate to the project and the trades involved ignored them. The notes did not cause any problems during the construction and were not shown to be inimical to the public health and safety. Therefore, while the inclusion of the notes was sloppy work, there was no negligence shown on the part of Respondent. Eleventh Street Office Park The plans for the Eleventh Street Office Park were signed and sealed by Respondent on January 31, 1989 The Eleventh Street Office Park project demonstrates best the dynamism involved in an evolving construction project. Often, as with the Eleventh Street project, an owner is not sure of the best method or design (usually determined by lowest cost) to utilize prior to construction or whether he wants to go forward with the expense of construction of a building given certain designs. On the Eleventh Street project three plans were developed, beginning with a three story structure with structural steel and precast walls, and ending with a large, one story, cement block structure on a cement slab. All the plans were for a shell building and did not include any floor plan. Preliminary rough drawings were completed by a draftsman who was hired by the project's owner. Respondent reviewed these rough drafts and over the course of several weeks made numerous structural changes. After the plans were re-drawn to Respondent's satisfaction, he submitted them to the building department in order to obtain a building permit. There is no question that the plans for the Eleventh Street project were drawn under Respondent's direct supervision and control. Therefore, Respondent is not guilty of improperly using his seal. The plans submitted to the building department were not intended to be complete. For instance, the owner had not decided where to locate the restrooms in the building. However, the owner, for unspecified reasons, wanted to proceed with obtaining a building permit. With that decision open, the detail for the plumbing aspects of the plan were not intended to be complete or to match as to specifics. Such limited detail was intended only to place the building department and the contractor on notice that some consideration had to be given to the upcoming plumbing. The same considerations applied to the electrical and mechanical aspects of the plans. All of the evidence concerning deficiencies in the electrical design of the Eleventh Street Office Park was based on Petitioner's expert's review of a single sheet of plans obtained from the building Department. This sheet is mysterious as to its origins and relationship to the Eleventh Street project. The sheet was not prepared by Respondent, did not bear his seal, lacked the fire department's approval which was present on other pages of the project's plans, and was a different size paper than those sealed by Respondent. There was no substantial evidence which demonstrated Respondent had prepared this sheet or that the sheet reflected the electrical plans used in the Eleventh Street project. The absence of extensive detail or the provision of extraneous notes on the electrical, mechanical and plumbing aspects of the plans were justified by the fact that the owner of the project had not made up his mind in regards to those details, such decisions could be determined later in the construction process, the Eleventh Street project was a shell building and there was sufficient detail for the licensed trades to perform their tasks when the time came and the decisions were made. The incompleteness of these plans in that regard was clearly justified by the specific circumstances of the Eleventh Street project. Therefore, Respondent is not guilty of violating Chapter 471, Florida Statutes. As with the Bay Podiatry project, the only exception to the above was that the hub drain/trap primer detail was not in accordance with the building code. For the reasons stated in regards to the Bay Podiatry project, the provision of the hub drain detail constitutes negligence in the practice of engineering in violation of Section 471.033(1)(g), Florida Statutes. Again the violation is a minor one. Similarly, as with the other three projects, no substantial evidence was presented that Respondent performed any architectural services in relation to the Eleventh Street project which were not incidental to the engineering services he performed. There was a great deal of debate among the experts as to the adequacy of the structural aspects of the Eleventh Street Office Park and whether they met the standards of practice for engineers. Most of the debate centered on how much detail needed to be placed on the plans and whether the detail provided was sufficient for a contractor to build a safe building. The better evidence demonstrated that the amount of detail on the plans was sufficient to enable a contractor to build a safe building. The detail which was not contained on the plans was contained in the building code and did not need to be included on the plans. Such a practice comports with the standard of practice in the Bay County area and is a specific circumstance of a project which would enable a professional engineer to exercise his judgment and not include such detail. 4/ Moreover, although the calculations were not contained on the plans, Respondent did, in fact, determine the structural soundness of the Eleventh Street project. Therefore, Respondent is not guilty of violating Section 471.033(1)(g), Florida Statutes. The only exception to the above is that Respondent was negligent in specifying the type of mortar to be used in the concrete walls. In essence Respondent specified three different types of mortars. These mortars significantly differed as to each mortar's respective strength. Use of an improper mortar in the concrete walls can effect the strength of the wall and cause them to be unsafe. This inconsistency in detail or specifications differs from the inconsistency in details or specifications where such details or specifications obviously do not apply to the project or where such details or specifications have no contrary reference in the plans. The latter two cases while showing sloppy work are not necessarily indicative of negligence and depend greatly on the surrounding facts and circumstances before a finding of negligence can be made. The inconsistency with the mortar is indicative of negligence since a contractor may very well use the wrong mortar on a project. In this case, the inconsistency did not become a problem and Respondent was present as the project manager to handle any problem which may have arisen. Therefore, the violation of Chapter 471, Florida Statutes, is moderate to minor.
Recommendation That the Department enter a Final Order finding Respondent guilty of five violations of Chapter 471, Florida Statutes, assessing a total fine of $750.00 and placing the Respondent's license on probation for a period of one year, during which Respondent should be required to take and pass a course or courses on the proper methods of plan drafting for the four violations involving negligence; and issuing a letter of guidance for the violation involving the date. DONE and ENTERED this 22nd day of February, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1991.
The Issue The issue for consideration in this hearing is whether Respondent's license as a professional engineer in Florida should be disciplined because of the matters alleged in the Administrative complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency responsible for the licensing of professional engineers in this state. Respondent, James B. Whittum, was licensed as a professional engineer by the Board under License No. PE 0027689, dated March 9, 1979. He is a consulting engineer dealing primarily in aluminum structures - mostly pool enclosures. Starting in 1990, Respondent did a number of designs, some thirty to fifty a year, for Paglino Aluminum, an aluminum contractor located in Tampa, which might also have had offices in Miami. The company is now out of business. Sometime in 1992 Respondent approved plans for Paglino for a residence for Mr. and Mrs. Marrero. These drawings were for an aluminum enclosure. He did not personally make the drawing which had been done by Mrs. Paglino. He did not know where the Marrero residence was but claims that at no time did he do or approve any drawings which he believed would be utilized for construction in Miami. In order to save clients money, Respondent had established a practice with Paglino and with a number of other clients by which he would train them in how to design and draw the pool cages. Respondent would provide the clients with a design booklet and instruction on how to use it. The client would bring drawings to the Respondent who would check them over to make sure that everything was done according to the design basis. A copy of the design guide was furnished to Paglino. Once Respondent received the drawings from the client, he would go through the whole design procedure himself to be sure that the drawings conformed to the code. In order to place his signature and seal on drawings, he had to have an identification of the site (either the name of the owner or the address of the site), the dimensions of the slab on which the structure is to be built, and the orientation of the structure with reference to the existing building to which it was to be attached. With regard to the specific plans in issue, Mr. Whittum did not know the structure was to be built in Dade County. The plans he saw bore the Marreros' name but not their address. He never spoke to the Marreros except for one call from Mrs. Marrerro, after the structure was built, complaining about it. Before signing the plans, Respondent checked in the Tampa phone book for listings for Marrero and found twenty-five or thirty listings for that name. He assumed the Marreros for which these plans were drafted were one of those families listed. It is not Respondent's practice to know the street address for every design he signs and seals. He inquired of several other engineers designing aluminum structures to see if they did the same as he proposed before signing and sealing these plans. He found that they have either the name of the owner or the street address, but not necessarily both. Included in those with whom Respondent spoke concerning this issue were engineers in Sarasota and Cape Coral. This testimony by Mr. Whittum as to the practice of other engineers is hearsay, however. Most counties in Florida, except Pinellas County, do not allow the use of standard plans as submittals for the purpose of permitting. However, an engineering firm has drawn a set of master drawings for the design of aluminum structures. These drawings were done for the Pinellas Chapter of the Aluminum Association of Florida, and each aluminum contractor in that county files them with the Pinellas Building Department. Thereafter, when plans are submitted, the Department official examines the plans with reference to the standard and decides whether or not to issue the permit. If the plans submitted by the contractor conform to the master design no engineer's signature or seal is required. This procedure has no bearing on any other county in Florida, however, and Respondent does not contend he believed at the time that the plans he signed would be used for construction in Pinellas County. It was not Respondent's practice to require a street address for the plans he signed and sealed for Paglino Aluminum. It was his understanding, however, that the instant structure was to be built in Hillsborough County because all the other jobs he had done for that company were, without exception, built in Hillsborough County. At no time did Paglino ever seek Respondent's permission to transfer these drawings to Dade County. By the same token, nobody asked him if the design he drew would be appropriate for Dade County. Had they done so, he would have told them the drawings were not suitable to meet the South Florida Building Code where the structural design standards are, in many ways, more stringent than in the Standard Building Code. As a result of this incident, Respondent has changed the procedure he follows. He now requires the drawings include a statement of who purchased the plans and who the proposed permitting authority is. This is not required by rule but is a precaution he takes. In his opinion, the drawings in issue were site specific. They showed the dimensions of the slab the structure was to be built on which determines the design for the size of the beams and their spacing. They also showed the orientation to the house where the structure would be connected. This was, he contends, all he needed to know to do the calculations for construction under the Standard Building Code. These calculations generally do not vary from county to county, with the exception of Dade and Broward County, where the South Florida Building Code is used. The plans Respondent signed and sealed did not indicate where the structure was to be built at the time he signed and sealed them. The plans called for a structure that could be put up anywhere in the state, except for Dade and Broward Counties. The fact remains, however, that at the time he signed and sealed these plans, Respondent did not know where the structure was to be built. His supposition that it would be built in Hillsborough County, while perhaps reasonable for a lay person, was not reasonable for a licensed professional engineer. According to James O. Power, a consulting structural engineer and expert in the practice of engineering, a structural engineer, in signing and sealing plans, accepts responsibility for the integrity of the design, certifies that the plans are good for their intended purpose, and asserts that the structure will be safe. A sealed plan may be necessary, depending on the building code and enforcement agency. The code leaves it up to the building official to require what he feels is necessary. Depending on the agency, permits may be issued on the basis of non-sealed plans. The seal carries with it the added imprimatur of the engineer's expertise. Properly sealed plans should: (1) identify the project; (2) identify the drafter; (3) identify the Code used; and (4) indicate limitations on responsibility the engineer has taken. Aluminum screen enclosures are generally similar and simple. Standard drawings can be developed for them. However, the standard plan, by itself, will not support a permit. To support the issuance of a permit, the plan must be site specific. This is a universal concept. For that purpose, additional drawings must be accomplished which consider and treat the specifics of that project. Frequently, plans are issued with a statement by the engineer limiting the degree of his or her responsibility, such as "only treating one issue" or "plans are standard and not site specific." No such limiting language was placed on the drawing in issue except, "This design is specific to this job. It is not valid if filed as a standard." In July, 1994, Mr. Power was contacted by the Department to evaluate the allegations against the Respondent in this case. In doing so, he reviewed the investigative report, portions of the transcript of the meeting of the Probable Cause Panel, the drawings in issue, and affidavits by Respondent and by the Dade County building official, but did not speak with any of them. Respondent's plans in issue bear the notation that the design is "job specific" and not valid if filed as a standard. This means that the plan should identify the job for which the plans were drawn and bear details pertinent to it. Here, the Respondent's plans refer to the "Marrero" job, and who the contractor was. In Power's opinion, this is not complete and it is not enough for the engineer to say he had the specifics in his mind. The plans must be complete and stand by themselves. Mr. Power admits he has not designed any pool enclosures. He also did not inquire whether Respondent had an office in Dade County or what the permit requirements of counties in the state are. However, in his opinion, it is universal that standard plans do not support the issuance of a permit. Respondent's design includes connection details, slab details and wind load requirements. However, the name of the owner, alone, is not site specific information. While the exact street location is not required, an identification of the area in which the project is to be built, at the very least by county, is. Respondent's expert, Mr. Sterling, is less critical of Mr. Whittum's performance. In his opinion, it is not common within the profession for signed and sealed drawings to have an address or a name or contractor's name on them. Having reviewed Respondent's drawings, Mr. Sterling does not see anything else he would need to know to properly design the structure. He does not agree with Mr. Power with respect to having the address on each and every drawing. To him, what is important in looking at the drawing from a structural point of view are the design criteria that were applied to that particular structure. To his knowledge there is no professional requirement, statute or regulation that would oblige one to provide additional information. He admits, however, that there may be different practices or rules being applied in Dade and Broward Counties with respect to structure of this type. By Final Order dated April 3, 1992, the Board disciplined Respondent's license for negligence in the practice of engineering by signing and sealing plans for an aluminum screened pool enclosure which the Hillsborough County Building Department found failed to meet acceptable engineering standards. The penalty imposed included an administrative fine of $500, a reprimand, and probation for one year under conditions designed to insure technical and professional enhancement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued finding Respondent guilty of negligence in the practice of engineering; imposing a fine of $1,000.00 and revoking his license, but that so much of the penalty as provides for revocation be suspended for a period of two years. RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31st day of May, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. Accepted and incorporated herein. 2 - 11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. Accepted, but primarily a restatement of testimony. 17. - 22. Accepted, but these are primarily restatements of witness testimony. FOR THE RESPONDENT: - 4. Not Findings of Fact but statements of procedure followed. Unknown. - 9. Not Findings of Fact but comments of the evidence. Accepted and incorporated herein. - 13. Accepted. 14. - 17. Accepted and incorporated herein. - 21. Accepted and incorporated herein. Rejected as surmise of witness, not knowledge. - 25. Accepted. - 28. Accepted. Not a Finding of Fact but a restatement of the issue. & 31. Not Findings of Fact but restatements of testimony. Not a Finding of Fact but a comment on the evidence. - 37. Accepted. Not a Finding of Fact but a restatement of the evidence. & 40. Not Findings of Fact but restatements of testimony. - 44. Accepted. Not a Finding of Fact but a restatement of testimony. More a comment by one witness on the testimony of another witness. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Mary Ellen Clark, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles S. Stephens, Esquire 1177 Park Avenue, Suite 5 Orange Park, Florida 32073 Lynda Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
