The Issue Whether Respondent, Garry Vermaas, Ph.D., P.E., committed the acts alleged in the Administrative Complaint (as submitted in the parties' joint pre-hearing submission).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: At all times material to the allegations in the Administrative Complaint, Respondent was a licensed professional engineer with License No. PE 61163. Respondent was the structural engineer of record for a 13-unit apartment building complex located at 214 Salamanca Avenue, Coral Gables, Florida. As such, on or about January 24, 2007, Respondent signed and sealed the last iteration of structural engineering documents for the project which were filed with the City of Coral Gables, Florida, as part of the application for a building permit. Respondent was the structural engineer of record for the above-referenced project as that term is used in Florida Administrative Code Rule 61G15-31. Petitioner is charged with providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers pursuant to Subsection 471.038(4), Florida Statutes. The Florida Board of Professional Engineers regulates the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes. The Administrative Complaint alleges that Respondent's structural engineering plans were deficient and failed to comply with acceptable standards of engineering practice, citing five instances: The masonry wall on Gridline A at the first level is not adequately designed in that it is overstressed when compared to the Florida Building Code specified wind loads. The block parapet walls at Elevation +49 and +53 are, also, not adequately designed insofar as they are overstressed when compared to the Florida Building Code specified wind loads. Wall Sections A and B on Sheet 1.10 show tapered balcony slabs with a one-inch step. The wall sections are inconsistent with the Typical Cantilever Balcony Detail on Sheet S2.01 and reduce the cover on the tendon to less than one inch required by the Florida Building Code. The placement of reinforcing bars in the bottom of the cantilevered balcony slabs on Sheets S2.02, S2.04 and S2.06 cannot be reasonably determined from the information on these sheets. Sheet S2.10 shows that the stair adjacent to the elevator must rise from the fourth floor at Elevation +35 to the level of the pool deck at Elevation +49. This is a rise of 14 feet and contrasts with the stair at Gridline A which rises from the fourth floor and terminates at the fifth floor at Elevation +45. As a result, the stair adjacent to the elevator requires an additional stair run and a landing neither of which have been addressed in Respondent's design documents. The masonry wall on Gridline A at the first level is not adequately designed in that it is overstressed when compared to the Florida Building Code specified wind loads. On Sheets S1.03 and S1.04 Respondent's structural engineering plans show a concrete masonry wall at Gridline A extending from reference lines 1.1 to 1.8 on the west side of the building; the floor-to-floor distance is 15 feet. The wall is subject to appreciable gravity load from above through vertical connective rebar. Post tension design of the floor system is unique; when the post tension concrete slab deflects, the vertical rebar will transfer the load to the wall in question. As a result of this loading, the subject wall receives loading in more than one direction and should be defined as a main wind force resisting system and should be designed as it is in Respondent's plans. The suggestion by Petitioner's experts that the wall is overstressed by 22 or 65 percent is a result of applying conservative values and failing to include the vertical load on the wall. Within the conservative and non-conservative values allowed by the Florida Building Code, there could be a 400-percent yield difference. The conclusion that the wall is overstressed by 22 or 65 percent does not prove negligence. The block parapet walls at Elevation +49 and +53 are not adequately designed insofar as they are overstressed when compared to the Florida Building Code specified wind loads. Average vertical bar spacing, as used by Respondent in the design of the subject parapet walls, is allowed by the Florida Building Code and is called the "plate" method of design. Petitioner's experts used calculations based on the "strip" method, also allowed by the Florida Building Code. The resulting suggestion that the parapet walls are overstressed by 24 or 62 percent is a result of the differences in analysis of the two methods and the application of conservative values. As stated above, the application of conservative or non- conservative values can result in a 400-percent yield differential. Wall Sections A and B on Sheet 1.10 show tapered balcony slabs with a one-inch step. The Wall Sections are inconsistent with the Typical Cantilever Balcony Detail on Sheet S2.01 and reduce the cover on the tendon to less than one inch required by the Florida Building Code. The subject wall sections are full wall sections and are not inconsistent, but demonstrate, generally, what the wall will look like. The slab design does not remain constant. The Typical Cantilever Balcony Detail on Sheet S2.01 shows that the post tension slab steps down at the top and bottom. The one-inch step-down prevents wind-driven rain from flowing in from outdoors. The resultant one-inch step-down on the bottom of the slab relates to maintaining proper clearance on the tendon. The detail (Typical Cantilever Balcony Detail on Sheet S2.01) demonstrates the one-inch step-down and would not be confused by an experienced post-tension subcontractor. The plans consistently refer to an eight-inch slab. The placement of reinforcing bars in the bottom of the cantilevered balcony slabs on Sheets S2.02, S2.04 and S2.06 cannot be reasonably determined from the information on these sheets. The exact placement of mild reinforcement in post tension design is not important. These plans are adequate in that they label the location of the bars (top or bottom) and clearly describe how the bars should be distributed. This item, according to Petitioner's expert, is not related to design, but to drawing preparation. Testimony revealed that the information used is imported through AutoCad software. These notes are clearly understandable to someone experienced with post tension design and construction. Sheet S2.10 shows that the stair adjacent to the elevator must rise from the fourth floor at Elevation +35 to the level of the pool deck at Elevation +49. This is a rise of 14 feet and contrasts with the stair at Gridline A, which rises from the fourth floor and terminates at the fifth floor at Elevation +45. As a result, the stair adjacent to the elevator requires an additional stair run and a landing neither of which have been addressed in Respondent's design documents. There is a similar staircase from the ground floor to the fifth floor elevation. An ancillary detail, Section G on Sheet S1.13 shows how to get from the fifth floor slab to the pool deck. Section G has three different staircases that show the contractor how the stairs should be constructed. The additional stair run is addressed on this section. The design and drawings comply with Section 1603.1 of the Florida Building Code, which states that "[t]he design loads and other information pertinent to the structural design required by Sections 1603.1. through 1603.1.8 shall be clearly indicated on the construction documents." Drawing presentations and which portions of the structure require more detail, is largely an opinion matter for each engineer to decide as long as he complies with the Florida Building Code. Respondent's expert witness, each of whom had excellent credentials and vast experience with post-tension design of floor systems, opined that Respondent's structural engineering documents for the subject project were not negligent in any way, and Respondent's drawings and calculations conform to acceptable engineering standards and safeguard the life, health, property and welfare of the public. Their testimony on the five alleged areas of negligence and their general conclusions are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Board of Professional Engineers, issue a final order dismissing the Administrative Complaint filed against Respondent, Garry Vermaas, Ph.D., P.E. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2009. COPIES FURNISHED: Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 N Monroe Street Tallahassee, Florida 32399-0792 John Jefferson Rimes, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Garry Vermaas Ground Floor Engineering 10125 West Colonial Boulevard, Suite 212 Ocoee, Florida 34761 Patrick Creehan, Esquire Chief Prosecuting Attorney Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267
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
The Issue Whether disciplinary action should be taken against Respondent's license as a professional engineer as a result of violations of Section 471.023 and Subsection 471.033(1)(g), Florida Statutes (2004), as alleged in the Administrative Complaint.
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent, Lawrence L. George, P.E., was a licensed professional engineer in the State of Florida, License No. PE21282. Florida Engineer Management Corporation is charged with the duty of providing administrative, investigative, and professional services to the Board of Professional Engineers (Board). The Board is charged with regulating the practice of engineering in Florida. On or about June 7, 2002, Respondent began to provide engineering services to Atlantic, a manufacturer of window and door units with glass encased in polyvinyl chloride frames, through the auspices of Highlands. Highlands did not have a certificate of authorization until October 20, 2003. Respondent provided to Atlantic a signed and sealed letter dated June 24, 2002, certifying that the Royal A-135 vinyl windows using laminated glass (two and one-eighth inch glass layers with one-eighth inch laminate) met the requirements of the 2001 Florida Building Code (the Code). Respondent's June 24, 2002, letter certified that the windows met the large missile/small missile impact requirements of the Code. The June 24, 2002, letter, certifying that the windows met the large missile/small missile impact requirements of the Code, as submitted, supported the conclusion that insulating glass windows manufactured by Atlantic complied with the Code. Royal A-135 windows made by Atlantic are insulating glass windows. Insulating glass has two or more layers of glass separated by air spaces. Test data submitted for Royal A-135 insulating glass windows does not meet the missile impact test of the Code. Section 1606.1.4 of the Code and the tests referenced therein require testing of entire window assemblies to comply with the large missile/small missile impact tests. The Royal A-135 insulating glass windows manufactured by Atlantic were not tested as required by the Code. At the final hearing, Respondent admitted that his engineering analysis in lieu of testing did not meet the requirements of the Code. The June 24, 2002, letter was also submitted to the City of Dunedin Building Department as a representation that the Royal A-135 windows made by Atlantic met the Code as far as missile impact tests. The wind load analyses provided by Respondent to Atlantic were required to be filed with the building department of the City of Dunedin in order to get construction permits. Pursuant to the Code, the City of Dunedin is wholly within an area designated a wind-borne debris region. On or about July 27, 2002, Respondent sent to Atlantic a signed and sealed letter that confirmed that a mullion detail satisfied the Code requirements in wind zones up to 140 mph wind speeds. On or about August 3, 2002, Respondent signed and sealed a drawing on Atlantic stationery of a mullion detail. The mullion detail is for a structural element between individual window assemblies. It forms a connection extending the length of the windows. The mullions designed by Respondent were not tested to determine compliance with the Code. On or about August 3, 2002, Respondent also provided to Atlantic a signed and sealed wind load analysis for the installation of replacement windows for a seventh floor apartment located at Nine Forbes Place, Dunedin, Florida (Forbes Place). On or about January 16, 2003, Respondent provided to Atlantic a signed and sealed wind load analysis for the installation of replacement windows for a second-story apartment in a multi-story building located at 634 Edgewater Drive, Dunedin, Florida (Edgewater Drive). On or about June 10, 2003, Respondent provided to Atlantic a signed and sealed wind load analysis for the installation of 150 replacement windows for a two-story apartment complex, Victoria Apartments at 1101 Victoria Drive, Dunedin, Florida (Victoria Apartments). On or about January 6, 2004, Respondent submitted to the Florida Department of Community Affairs (DCA) a validation that the windows described in paragraph five complied with the Code. This validation was for the purpose of establishing the windows as "approved products," or standards, published on the Florida Building Code Information Systems' website for design professionals. Respondent submitted test results to the DCA for laminated glass windows manufactured by other companies, but those tests do not support the conclusion that insulated glass windows made by Atlantic would pass the missile impact tests. Respondent never provided test results for laminated glass windows made by Atlantic. Respondent did not provide an engineering design to show that the mullion would be directly connected to the substrate supporting the window. Respondent did not provide an engineering analysis to address deflection of the mullion under design pressure loads. A mullion of the type certified in the July 27, 2002, letter was used in the Victoria Apartments. Respondent designed the mullions to be constructed on-site at the Victoria Apartments as the windows were installed. The annealed glass insulating replacement windows for Victoria Apartments were not impact resistant. The Victoria Apartments with the Atlantic replacement windows are partially enclosed structures within the meaning of the Code. Respondent did not provide calculations in the wind load analysis for Victoria Apartments to show that the structural elements of the apartments could resist design load for a partially enclosed building after replacement of all the windows. It is not necessary to determine whether the mullions used at Victoria Apartments were integral parts of the units or connectors that had to be directly attached to the substrate. If the windows used integral mullions, they were not tested as required by the Code; if the windows employed mullions that were not integral, they were not engineered as required by the Code. Wind load calculations for Forbes Place used one-third increase in allowable stress to the structure and assemblies, which is contrary to the Code. Wind load calculations for Forbes Place did not take into account the height of the building. Wind load calculations for the Edgewater Drive project used an improper importance factor of 0.77. Use of an importance factor of 0.77 was a misinterpretation of the Code. Wind load calculations for Edgewater Drive did not take into account the height of the building. Respondent did submit an application for product approval to the Florida Building Code Information System for Royal A-135 windows on or about January 6, 2004. The application for product approval included Respondent's letter of June 24, 2002. The product approval system is a vehicle by which manufacturers can get statewide approval for products through a website operated by the Florida Building Commission. Beginning in 2003, manufacturers could submit documentation for particular products through the website. When the manufacturer submits its documentation, it may also present a validation through the website, such as the one Respondent presented in Exhibit P4. After a product has been validated, the submission may be forwarded to the Florida Building Commission for approval, but the fact the validation appears on the website does not mean it has been approved. Approval by the Florida Building Commission is limited to whether required documents have been properly filed; it does not mean that the documents submitted by the validating engineer contain technically correct information. Technical information and analysis is not reviewed by the Florida Building Commission. The Board is the only entity currently charged with the responsibility to investigate whether a validating engineer has provided accurate engineering in a submission to the product approval system. Respondent's June 24, 2002, letter is confusing and misleading in its references to both insulating and laminated glass. Respondent had difficulty navigating the Florida Building Code Information System website and repeatedly submitted an application for product approval to authorities. Respondent continued to enclose the June 24, 2002, letter with the application to represent that insulating glass windows comply with the missile impact requirements of the Code. Continued use of the letter in his application process manifests continuing negligence or incompetence by Respondent. However, Respondent, later in 2004, adopted procedures for submittal to local building departments that would better explain his wind load calculations.
Recommendation Based on the foregoing Findings and Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineering adopt the foregoing Findings of Fact and Conclusions of Law and enter a final order imposing a penalty of: a reprimand; six months' suspension, followed by five years' probation; and an administrative fine of $12,000, plus the costs of these proceedings. DONE AND ENTERED this 21st day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 21st day of December, 2004. COPIES FURNISHED: Bruce A. Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Lawrence L. George, P.E. 5920 Winewood Drive Lakeland, Florida 33813 Teresa Baker, Clerk Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267
The Issue The issue to be resolved in this proceeding concerns whether the Respondents practiced architecture without being appropriately licensed, as alleged in the Administrative Complaint, and, if so, what, if any, penalty should be imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with the responsibility of regulating entry into the practice of architecture and the practice of architecture, including regulation and enforcement concerning proper certification and licensure with regard to the practice of architecture in accordance with Chapters 20, 455, and 481, Florida Statutes. The Respondents are not certified or licensed as an architect or architectural business in accordance with Chapter 481, Part I, Florida Statutes. The Respondent, Lee Mabire, is the sole stock holder and officer of the Respondent, Lee Mabire & Company. Sometime in September 2001, the Respondent, Lee Mabire, was contacted by Mike Rush to provide drawings for a commercial construction project located at 2621 Michigan Avenue, in Pensacola, Florida. The property in question is owned by Lavonia Ives. Mike Rush, the builder, had commenced construction of the renovations requested by Ms. Ives, the owner, but the work on the renovations had ceased because Mr. Rush had never obtained a building permit. Ms. Ives was renovating the property because she intended to lease it to a biomedical company. Mr. Rush needed plans drawn for the project in order to obtain the necessary building permit. Mr. Rush provided the Respondent with a floor plan at the initial meeting he scheduled with the Respondent, Mr. Mabire. The floor plan included a reception area, a conference room, repair shop, storage, warehouse, kitchen, bathroom, and five offices. The project clearly would cost in excess of $25,000.00 as described by Mr. Rush in his request for plans made to the Respondent. The building was designed to include a reception area that had a door open to the public. The Respondent drafted the plumbing, mechanical, and electrical drawings for the project. Oscar Woody, a licensed architect, first became aware of the Ives project through the Respondent. The Respondent gave Mr. Woody several sheets of drawings that he had already prepared. Mr. Woody was responsible for assuring that the plans for the building complied with the American With Disabilities Act. The Respondent is not an employee of Woody or Oscar Woody & Associates and has never received a W-2 form from either of those entities. On November 5, 2001, Mr. Woody signed and sealed the plans prepared for the Ives project. The plans which Mr. Woody signed and sealed as an architect had been prepared by the Respondent. The plans included three pages, a floor plan, an electrical plan, and an HVAC plan. The plans for the project were submitted to the city building department for permitting on November 5, 2002. Mr. Rush told the owner, Ms. Ives, that the Respondent had prepared the architectural drawings for the project. On November 5, 2001, at a meeting outside the building department office, the Respondent gave the plans to Ms. Ives. This was the first time Ms. Ives had ever met the Respondent in person. Prior to the hearing, Ms. Ives had never met Mr. Woody nor had any discussions with Mr. Woody. On that same day, November 5, 2001, Ms. Ives gave the Respondent a check in the amount of $2,400.00 and, at the request of the Respondent, left the payee portion of the check blank. The Respondent later filled in Oscar Woody & Associates as the payee of the check. Ms. Ives requested that the Respondent prepare a receipt for the services he provided an evidencing that payment had been made. The Respondent prepared and signed the receipt for the payment dated December 4, 2001, that describes the scope of services as "Comm. Bldg. Rem. Plans to code." Mr. Woody's name does not appear anywhere on the receipt. The building department required Mr. Woody to revise the electrical and HVAC sheets contained in the plans which he had signed and sealed. Those revised drawings were prepared by the Respondent, however. Mr. Woody signed and sealed the revised drawings on December 11, 2001. On that same day, Ms. Ives gave the Respondent a check in the amount of $125.00 made payable to Lee Mabire Company. The memo on that checks states "revised blueprints, Michigan Avenue." The Respondent provided Ms. Ives another receipt for the payment and described the services as "revised blueprints to meet code." Throughout this sequence of events, the Respondent was the only person Ms. Ives had contact with regarding the architectural drawings that were filed with the building department, other than Mr. Rush and personnel from the building department itself. On February 12, 2002, Don Mathys, filed a complaint with the department against the Respondents for drawing and submitting plans to the Escambia County Building Department for a commercial project. Mr. Mathys was previously a Florida licensed architect, who was chief plans examiner for the Escambia County Building Inspections Department at the time the complaint was filed. The Respondent, Mr. Mabire, has previously been disciplined by the department for the unlicensed practice of contracting and has received a Notice and Order to Cease and Desist as to that disciplinary action on February 18, 2000. The Notice and Order to Cease and Desist pertained to a set of drawings prepared by the Respondent for an office building.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that the Respondents Lee Mabire and Lee Mabire Company violated the above referenced statutory provisions concerning the unlicensed practice of architecture; that an administrative fine in the amount of $2,000.00 be imposed against the Respondents, and that they be required to pay the costs, other than attorney's fees, in the amount of $2,111.25. DONE AND ENTERED this 8th day of June, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 8th day of June, 2004. COPIES FURNISHED: David K. Minacci, Esquire Smith, Thompson, Shaw & Manausa, P.A. 2075 Centre Pointe Boulevard Tallahassee, Florida 32308-4893 Lee Mabire, pro se 4440 Bayou Boulevard, No. 25 Pensacola, Florida 32503 Sherry Landrum, Executive Director Architecture and Interior Design Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729
