The Issue Whether Respondent, the County of Volusia, Florida, (the County or Respondent) 1 illegally discriminated against Pamela Allen (Petitioner) by refusing to issue a building permit for re-shingling Petitioner’s roof because of her race.
Findings Of Fact Petitioner is a Black female who resides at 4204 Quail Nest Lane, New Smyrna Beach, Florida (the Property), in Volusia County. The home was built in 1994 before the Florida Building Code (the Code) was first implemented. Petitioner purchased the home through a confidential auction in the Fall of 2019. At the time of purchase, Petitioner was living in Georgia and was aware that the Property was uninhabitable and in foreclosure. In order to purchase the Property at auction, Petitioner took out a loan from a private investment group. The loan’s conditions forbade Petitioner from moving into the Property until repairs to the house were complete and Petitioner obtained a conventional mortgage. In an effort to obtain a higher appraisal rate, Petitioner planned to do a shingle-over-shingle overlay of the Property’s roof. Hughlester Philip, a friend of Petitioner’s who lived in Georgia, agreed to help Petitioner with the shingle-over-shingle overlay. In early December 2019, Mr. Philip, with the help of his brother and a friend, began to place an overlay of shingles by placing shingle over shingle on the Property’s roof without a permit or inspection. Neither Hughlester Philip, his brother, nor his friend were Florida- licensed contractors, and neither of them had any ownership interest in the Property. A permit from the County was required prior to starting work on the roof. A stop work order (Stop Work Order) was issued by the County and posted in the yard of the Property for the re-roofing project on December 13, 2019, due to Petitioner’s failure to pull a permit prior to starting the shingle- over-shingle overlay. Neither Mr. Philip nor Petitioner were on the Property when Respondent posted the Stop Work Order. Petitioner does not know who placed the Stop Work Order in her yard. At the final hearing, Petitioner admitted that she should have obtained a permit prior to the start of the re-roofing project and that she was at fault for failing to obtain a permit before the work began. On December 13, 2019, after the Stop Work Order was issued, Petitioner went to the County to apply for a permit. Mr. Philip helped Petitioner complete the permit application. Prior to this permit application, Mr. Philip had never personally pulled a permit for a roof overlay in Florida or anywhere else. In fact, Mr. Philip had never applied for any type of permit in Florida. When Petitioner arrived to submit her application for a permit to the County, there were several women working in the office. This was the first time that Petitioner had any contact with anybody from the County. Petitioner was not asked about her race or gender as part of the permit application process. In her permit application, Petitioner specified that she sought a permit to re-roof her sloped shingle roof and that she did not intend to remove the existing roof. In other words, she intended to place shingle over shingle without removing the existing roof. As part of the County’s permitting process, once a permit application is filed, a plan review is performed. If any deficiencies are noted, the County automatically issues a request for additional information (Additional Information Request). County Plans Examiner, Harold Allen, was charged with reviewing Petitioner’s permit application. On December 19, 2019, the County issued Petitioner an Additional Information Request. The request, prepared by Mr. Allen, stated that Tom Legler would be performing an inspection of the project, and, quoting language found in section 706.3(5) of the Code, further stated: New roof coverings shall not be installed without first removing all existing layers of the roof coverings down to the roof deck where any of the following conditions occur: Where the existing roof is to be used for attachment for a new roof system and compliance with the securement provisions of Section 1504.1 of the Florida Building Code, Building cannot be met. Mr. Harold Allen had never met Petitioner, nor had he spoken to her on the phone prior to sending the Additional Information Request on December 19, 2019. The Property was built prior to implementation of the Code in 1994, and the County did not have any record of an inspection being done since then. The County’s main concern was Petitioner’s intent to install a shingle roof over an existing shingle roof without a County inspector being able to first verify that the underlying sheathing complied with current code. The Code is implemented by the State of Florida, not the County. The County has no authority to delete or change the Code. After receiving the Additional Information Request, Petitioner made several calls to the County. During these calls, Petitioner spoke to Mr. Allen and Chief Building Inspector Tom Legler. On one of the calls, Petitioner alleges that she heard Mr. Legler state to someone else that “those people are calling again about their roof.” Paragraph 29 of Petitioner’s Proposed Recommended Order suggests that Mr. Legler’s reference to “those people” was a racial epithet. That suggestion, however, is not supported by the evidence. At the final hearing, Petitioner testified that she did not know who Mr. Legler was speaking to and does not know why Mr. Legler referred to her as “those people.” The evidence was otherwise insufficient to show whether Mr. Legler was even aware of Petitioner’s race at the time the comment was made. During the same time period that Petitioner was calling the County in December 2019, Petitioner hired George Miles, a professional engineer, because she needed an engineer to certify that the work performed on the Property’s roof complied with the Code. Depending on the circumstances, the County has the authority to accept engineer certification letters on code compliance in lieu of conducting its own inspection. After inspecting the roof and noting that some areas needed repair, Mr. Miles prepared a letter certifying that the work that had been completed on the roof complied with the Code and that he planned to submit his letter to the County to consider in lieu of a County inspection. However, as there was a disagreement with the County as to whether the roof needed to be removed to comply with the Code, the County indicated that it would not accept the letter in lieu of inspection and Mr. Miles never submitted the letter. In attempting to resolve the disagreement over Petitioner’s permit application, Mr. Miles mainly spoke to Kerry Leuzinger, who is the Chief Building Official and Division Director of the County’s Building and Code Administration. Early on, in December of 2019, before the County sent Petitioner any letter regarding potential fines, Mr. Philip contacted roofing contractor David Schaare to ask how much it would cost Petitioner to reroof her Property. Mr. Philip advised Mr. Schaare of the Stop Work Order and need for a permit. Thereafter, Mr. Schaare evaluated Petitioner’s Property and estimated how much it would cost to reroof it. Mr. Schaare determined that the overlay was done incorrectly. According to Mr. Schaare, the roof work did not comply with the Code and Mr. Schaare advised Mr. Philip that “[e]verything would have to come off to be done correctly… .” At the final hearing, Mr. Schaare testified that he had never seen the County approve a shingle overlay for a roof in the same condition as Petitioner’s. Petitioner was on the phone during several calls between Mr. Miles and Mr. Leuzinger, but Petitioner did not speak. Mr. Leuzinger does not recall ever speaking with Petitioner on the phone and was not aware of Petitioner’s race at the time. Petitioner has never met Mr. Leuzinger face-to- face. In fact, Mr. Leuzinger was not aware of Petitioner’s race until he received notice of Petitioner’s Discrimination Complaint in January of 2021-- more than a year after Respondent issued the Stop Work Order and more than a year after Petitioner applied for a permit in December of 2019. Mr. Miles, Petitioner, and Mr. Leuzinger also discussed Petitioner’s permit application over email. On January 10, 2020, Mr. Miles emailed Mr. Leuzinger to advise of his interpretation of the Code and to ask if Respondent agreed with it. After several emails back and forth, and lack of consensus between them as to interpretation of the Code, Mr. Leuzinger advised Mr. Miles that Petitioner could appeal Respondent’s decision to the Volusia County Contractor Licensing & Construction Appeals Board (the Board) or request a binding interpretation from the Florida Department of Business and Professional Regulation (DBPR). On January 13, 2020, Respondent issued Petitioner a Notice of Violation regarding Petitioner’s failure to obtain required permits prior to starting the work on the Property’s roof. The Notice of Violation is a standard letter that Respondent sends to homeowners to notify them of a code violation and to notify them that Respondent could take further action if the homeowner fails to correct the violation. This was the only Notice of Violation that Petitioner received. Respondent did not issue Petitioner another Notice of Violation because Respondent was aware of Petitioner’s intent to appeal Respondent’s denial of a permit. On January 15, 2020, after speaking with Mo Modani, who works for DBPR, Mr. Miles emailed Mr. Leuzinger and advised that Mr. Modani’s opinion regarding the Code was consistent with the position advocated by Mr. Miles on behalf of Petitioner. Mr. Miles provided Mr. Modani’s name and phone number and asked Mr. Leuzinger to give him a call. Mr. Modani is a staff member who does not have authority over local jurisdictions with respect to enforcement of the Code. That same day, January 15, 2020, instead of calling Mr. Modani, Mr. Leuzinger responded with an email to Mr. Miles stating, “We have made our determination and it stands.” At some point, Petitioner decided to abandon efforts to obtain an overlay and instead hired Mr. Schaare to replace the roof. Although it is unclear from the record when the job was completed, once Mr. Schaare undertook the project, it took him approximately two days to replace the roof at a price of approximately $25,000. According to Mr. Schaare, the County inspector for the Property mentioned that he had made a bid on the Property when it was up for auction. Mr. Schaare could not remember the name of the inspector and he did not know if it was Kerry Leuzinger. Mr. Schaare related this information to Mr. Philip. Mr. Leuzinger was not the inspector for the Property and there is otherwise lack of sufficient evidence that would support a finding that “Kerry Leuzinger attempted to purchase the subject property while it was in Auction,” as alleged in the Discrimination Complaint. On January 30, 2020, Mr. Miles appealed the County’s decision to deny Petitioner’s permit for an overlay to the Board. The Board is composed of various professionals in the construction industry, none of whom are employed by Respondent. The role of the Board is to review cases to assess the reasonableness of the County’s decision. Petitioner’s appeal was held before the Board on March 4, 2020. Chief Plans Examiner Eric Gebo presented on Respondent’s behalf. Mr. Gebo never personally met Petitioner, never spoke with Petitioner, and did not know Petitioner’s race. Petitioner did not present to the Board, rather, Mr. Miles presented on Petitioner’s behalf. Mr. Leuzinger was not present. The discussion regarding Petitioner’s proposed roof-over lasted more than 30 minutes. The crux of the issue was whether the sheathing nailing on the roof could be verified as required under the applicable provisions of the Code. According to the County, because Petitioner’s home was built before the Code’s implementation and Respondent did not have evidence of a prior roof permit being pulled, the County could not verify that the underlying sheathing was ever inspected and could not verify that the sheathing complied with the Code without Petitioner first removing the existing layers of shingles. The position of the County on the issue was consistent with its decisions in other cases with similar facts. During the hearing, Mr. Miles stated that, “[w]hen it comes down to the simple truth of this is that it’s a difference of interpretation.” He also advised the Board that he “wanted to actually have [the State] make a recommendation on this … and they will not do it until [they] go through this process.” The Board members also discussed the need for clarification as to the Code. For example, while one Board member indicated that “the Code seems pretty clear,” another member asked Mr. Gebo for clarification because he believed that “[they] cover roofs all the time without tearing them off.” After further discussion, the Board, by unanimous vote, concluded that Respondent correctly denied Petitioner’s permit application. Even so, the Board encouraged Mr. Miles to seek a binding interpretation from the State because the wording in the Code “needs to be resolved.” On June 8, 2020, Mr. Miles filed a petition with DBPR on behalf of Petitioner requesting a binding interpretation of section 706.3 of the Code.2 Following a telephonic hearing held before the Building Officials Association of Florida, on July 7, 2020, a binding interpretation of the Code was entered agreeing with Mr. Miles’ interpretation that an overlay was permitted. The comment to the binding interpretation acknowledged that the wording of the section it interpreted “has created confusion.”
Conclusions For Petitioner: Ka'Juel Washington, Esquire The Washington Trial Group, PLLC Suite 500 37 North Orange Avenue Orlando, Florida 32801 For Respondent: Erin G. Jackson, Esquire Johnson Jackson PLLC Suite 2310 100 North Tampa Street Tampa, Florida 33602
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 17th day of September 2021, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September 2021. COPIES FURNISHED: Ka'Juel Washington, Esquire The Washington Trial Group, PLLC Suite 500 37 North Orange Avenue Orlando, Florida 32801 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Erin G. Jackson, Esquire Johnson Jackson PLLC Suite 2310 100 North Tampa Street Tampa, Florida 33602 Kerry Leuzinger, Director Volusia County Building and Code Administration 123 West Indiana Avenue Deland, Florida 32720 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Laura Mauldin Coleman, Esquire County of Volusia 123 West Indiana Avenue Deland, Florida 32720 Ashley Tinsley Gallagher, Esquire Johnson Jackson PLLC Suite 2310 100 North Tampa Street Tampa, Florida 33602
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
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 make the following relevant factual findings. Petitioner is the State agency charged with regulating the practice of contracting. During times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a certified air conditioning contractor having been issued licensed number CA C022410. Respondent has been so licensed since May 1982. During December, 1982, Petitioner submitted a change of status application requesting that his license be changed to qualify for All County Air Conditioning (All County) in Fort Lauderdale, Florida. That change of status application was approved by Petitioner and Respondent has remained the qualifier for All County continuously and his license has been renewed as such and is active for the period 1987-1989 (Petitioner's Composite Exhibit 4). On September 4, 1985, Respondent through the entity All County, entered into a contract with Ernest D'Esposito to "furnish and install 1 new Whirlpool 2 Ton condensing unit, with new slab, hook-up to existing pipes and electric". The agreed upon price to complete the work was $950.00 with a five year guarantee on the compressor and a one year guarantee on parts and labor. (Petitioner's Exhibit 1). Respondent commenced the work as agreed and completed the work as scheduled. Respondent did not obtain a permit for said work from the local building department nor was a permit posted on the job site when Respondent commenced work on the project. While the work was in progress, Respondent did not obtain any inspections for the work from the local building department. A record search of the Pembroke Pines Building and Zoning Department revealed that Respondent did not obtain a permit to install the air conditioning unit at D'Esposito's residence. (Testimony of Marie Bogart, records custodian, Building and Zoning Department, City of Pembroke Pines). Rene Pena, chief mechanical inspector for the City of Pembroke Pines, is the person who checks the installation of all air conditioning work in the City of Pembroke Pines. Mr. Pena did not perform any inspections on D'Esposito's job nor was he requested to perform any inspections by Respondent. Respondent testified at the hearing and admits that no permit was obtained for D'Esposito's job. However, Respondent offered his opinion that the code did not require a permit and that his failure to obtain one was not a violation of the South Florida Building Code. Finally, Respondent offered that to the extent that there was a technical violation of the law, it was not a willful violation and that imposition of a fine would not be appropriate in this instance as his firm "tries to stay within the confines of the South Florida Building Code". Respondent acknowledged that he is the person responsible for ensuring that permits are obtained when required for completion of projects.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner, Construction Industry Licensing Board, enter a Final Order imposing an administrative fine against Respondent in the amount of five hundred dollars ($500.00), the payment of which shall be made to Petitioner within a time frame deemed appropriate by Petitioner. Respondent's license as a certified air conditioning contractor be placed on probation for a period of thirty (30) days. RECOMMENDED this 28th day of January, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1988. COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael B. Falls 4611 Southwest 30th Way Fort Lauderdale, Florida 33312 Fred Seely, Executive Director Department of Professional Regulation, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neill, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent's statements regarding enforcement of the Florida Elevator Safety Code, as set forth in the Amended Petition Challenging Agency Statement Defined as a Rule filed November 21, 2008, constitute agency statements defined as rules that must be promulgated pursuant to Section 120.54(1), Florida Statutes (2008).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, including the stipulated facts contained in the Pre-Hearing Stipulation, the following findings of fact are made: The Department is the state agency "empowered to carry out all of the provisions of this chapter relating to the inspection and regulation of elevators and to enforce the provisions of the Florida Building Code." § 399.02(6), Fla. Stat. The Department is given rulemaking authority to carry out the provisions of Chapter 399, Florida Statutes. § 399.10, Fla. Stat. The City is an incorporated municipality of the State of Florida. As a property owner, it is subject to the provisions of Chapter 399, Florida Statutes, and to the rules adopted by the Department to carry out its responsibilities under Chapter 399, Florida Statutes. Pursuant to Section 399.061, Florida Statutes, "[a]ll elevators . . . subject to this chapter must be annually inspected," and the Department has the authority to require correction of any violations of Chapter 399, Florida Statutes, or of the Florida Building Code discovered in those inspections. § 399.061(1)(a) and (4), Fla. Stat. The Department also has the authority to protect the public safety by ordering that the use of any elevator found to be in an unsafe condition be discontinued until the elevator has been repaired and may be operated safely. § 399.061(3). Section 399.02(5)(b), Florida Statutes, places on the elevator owner the responsibility "for the safe operation, proper maintenance, and inspection and correction of code deficiencies of the elevator after a certificate of operation has been issued by the department." The Department has adopted standards for the installation and maintenance of elevators in Florida Administrative Code Rule 61C-5.001, which provides in pertinent part: Adopted Standards. The installation and maintenance of elevators, dumbwaiters, escalators, moving walks, inclined and vertical wheelchair lifts, and inclined stairway chairlifts shall be governed by the following standards, which are hereby adopted and incorporated by reference. Chapter 30, Elevators and Conveying Systems, of the 2004 Florida Building Code, including the 2006 supplements; American National Standard Guide for Inspection of Elevators, Escalators, and Moving Walks, ASME A17.2-2004; and The Uniform Fire Safety Standards for Elevators, Chapter 69A-47, F.A.C., established by the Department of Financial Services. Chapter 30 of the Florida Building Code provides in pertinent part: 3001.1 Scope This chapter governs the design, construction, installation, alteration and repair of elevators and conveying systems and their components. Note: Other administrative and programmatic provisions may apply. See the Department of Business and Professional Regulation [DBPR] Chapter 399, Florida Statutes, and 61C-5, Florida Administrative Code. The regulation and enforcement of the following sections of the adopted codes, and their addenda, are preempted to the Bureau of Elevator Safety of the Department of Business and Professional Regulation: ASME A17.1, Part 8, ASME A17.3, Sections 1.2, 1.5, ASME A18.1, Part 10. 3001.2 Referenced standards Except as otherwise provided for in this code, the design, construction, installation, alteration, repair and maintenance of elevators and conveying systems and their components shall conform to ASME A17.1, ASME A17.1S, ASME A90, ASME B20.1, ALI ALCTV, ASME A17.3 and ASME A18.1. The Division of Hotels and Restaurants may grant exceptions, variances and waivers to the Elevator Safety Code as authorized by the Elevator Safety Code. (ASME A17.1, Section 1.2) and Florida Statutes (Chapter 120).[6] The Department did not separately incorporate by reference ASME A17.1, Part 8 (2004), or ASME A17.3 (1996) in Florida Administrative Code Rule 61C-5.001. ASME A17.2-2004, which is specifically incorporated by reference in Florida Administrative Code Rule 61C-5.001(1)(b), is entitled "Guide for Inspection of Elevators, Escalators, and Moving Walks" and provides in the Preface in pertinent part as follows Requirements for Existing Elevators Elevators and escalators in jurisdictions that have adopted the Safety Code for Existing Elevators and Escalators, ASME A17.3, . . . must, at a minimum, conform to the requirements identified in the Guide as "A17.3." If an existing installation does not meet the requirements of the A17.3 Code, it must be upgraded. If an existing installation was required to meet more stringent requirements, it must continue to meet those requirements.[7] The Preface to ASME A17.3 (1996), the edition of the standard used by the Department, includes a statement of the general purpose of the standard and provides in pertinent: This Code is intended to serve as the basis for state and local jurisdictional authorities in adopting retroactive requirements for existing elevators and escalators to enhance the safety of the general public. It is also intended . . . as a standard of safety practices for building owners and managers of structures where existing elevator equipment covered in the scope of the Code is used. The purpose of this Code is to establish minimum requirements that will provide a reasonable degree of safety for the general public. [8] Section 1.2 of ASME A17.3 (1996) provides in pertinent part as follows: "Existing installations, as a minimum, shall meet the requirements of this Code. If an existing installation does not meet the requirements of this Code, it shall be upgraded. If an existing installation was required to meet more stringent requirements, it shall continue to meet those requirements."9 Section 1.5 of ASME A17.3 (1996) provides that existing installations must conform to Part X of ASME A17.1, Routine, Periodic, and Acceptance Inspections and Tests, and to Part XII, Alterations, Repairs, Replacements, and Maintenance.10 Part 8 of ASME A17.1 (2004), the edition of the standard used by the Department, "contains general requirements for new and used existing equipment."11 A note appended to the statement of the scope of Part 8 states that "[r]equirements 8.1, 8.6, 8.9, 8.10, and 8.11 apply to both new and existing installations."12 Requirement 8.1 deals with security for new and existing elevators; Requirement 8.9 requires placement of a Code data plate on all new and existing elevators; Requirement 8.10 applies to new installations and alterations to existing installations. Pertinent to this proceeding, Requirement 8.6 "applies to maintenance, repairs, and replacements" and Requirement 8.6.1.2 provides as follows: Maintenance, repairs, and replacement shall conform to 8.6 and the Code at the time of the installation Code requirements at the time of any alteration ASME A17.3 if adopted by the authority having jurisdiction[.][13] Requirement 8.11 applies to "periodic inspections and tests of existing installations", and Requirement 8.11.1.2 provides as follows: Inspections and tests required by 8.11.2 through 8.11.5 are to determine that the existing equipment conforms with the following Code requirements: the Code at the time of installation the Code effective as applicable to and for each alteration the ASME A17.3 Code, if adopted by the authority having jurisdiction[.][14] Section 399.03, Florida Statutes, governs the design, installation, and alteration of conveyances, and provides in pertinent part: "(7) Each elevator shall comply with the edition of the Florida Building Code or Elevator Safety Code that was in effect at the time of receipt of application for the construction permit for the elevator."15 The Department publishes Industry Bulletins and Technical Advisories regarding the implementation of Chapter 399, Florida Statutes, and it also publishes statements of "Current Practices" on its website. At issue herein are statements made in Industry Bulletin for Florida's Elevator Industry Number 2006-01, dated April 1, 2006; Industry Bulletin for Florida's Elevator Industry Number 2006-04, dated August 1, 2006; Industry Bulletin for Florida's Elevator Industry Number 2008-03, dated July 18, 2008, and revised July 21, 2008; Technical Advisory Issue 2008-01, dated August 18, 2008; and contained in a posting on the Department's website entitled "Elevators Current Practices." In each of these documents, the Department indicated that, to ensure the safety of the public, it would enforce the provisions of the then currently-adopted edition of the Florida Building Code to the extent that the Florida Building Code required retrofitting or modification of existing elevators. In Industry Bulletin Number 2006-01, dated April 1, 2006, the Department stated that, notwithstanding the provision in Section 399.03(7), Florida Statutes, "that elevators 'shall comply with the edition of the Florida Building Code or Elevator Safety Code that was in effect at the time of the receipt for [sic] application for the construction permit for the elevator,'" it would not exempt existing elevators from the provisions of the "new" edition of the Florida Building Code that "require[] retrofitting older elevators because aging equipment may pose a threat to public safety." The Department stated that "Florida Statutes [specifically section 399.001 and 399.061(3)] are in agreement with ASME A17.1 (2000) and A17.3 (1996) regarding life safety issues" and that the Department would require "that, in the interest of public safety, the older and potentially hazardous elevator be brought into compliance with the newer code."16 In Industry Bulletin Number 2006-04, dated August 1, 2006, the Department reiterated its intent to enforce the "new" edition of the Florida Building Code regarding the modification of existing elevators to protect public safety because public safety was its paramount regulatory responsibility. It also reiterated that it could not "provide an elevator owner with an exemption from a new code provision essential to the safe operation of the elevator." The Department advised that it would specifically "require the single wall hydraulic cylinder safety provision of the ASME A17.1 2000 code [Section 8.6.5.8] [to] be enforced as part of the annual elevator inspection." The Department observed that "[t]he ASME Standards Committee considered these sections [Section 8.6.5.8 and sections reference therein] so important to life safety that corrective action is required for all existing single wall hydraulic cylinder elevators." The Department also advised elevator owners that, because compliance with certain code requirements might be "costly and/or complex," they "may submit to the bureau [of Elevator Safety] a letter of intent to comply within 30 days of the date of issuance of an Order to Correct and a plan of corrective action (PCA) within 60 days of the date of issuance of an Order to Correct."17 In Industry Bulletin Number 2008-03 dated July 18, 2008, and revised July 21, 2008, the Department stated in pertinent part: The Elevator Safety Code, Chapter 399, F.S.; Chapter 61C-5, Florida Administrative Code; Chapter 30 of the Florida Building Code; and the American Society of Mechanical Engineers (ASME) national standards ASME A17.1-2004 with A17.1a-2005 addenda, A17.2-2004, A17.3- 1996, and ASME A18.1-2003 provide a minimum standard for public safety. These are the codes currently in effect and they will be enforced. In fact, the more stringent of the codes in effect apply, unless specifically stated or otherwise adopted by the Bureau of Elevator Safety, which is the Authority Having Jurisdiction (AHJ). There are no exceptions. The elevator safety code is not subject to individual interpretation. The codes collectively apply to all elevators and provide for the health, safety, and welfare of the riding public.[18] In Technical Advisory Number 2008-01 dated August 18, 2008, headed "Temporary Variance for ASME A17.3 Violations," the Department stated that "elevator owners of older elevators have stated they cannot meet the 30-day requirement to correct costly and complex violations [of A17.3(1996)]." The Department advised that the Bureau of Elevator Safety "was moving forward to extend the current temporary compliance alternative (variance) to include additional A17.3(1996) violations beyond the initial cylinder replacement issue [see Industry Bulletin Number 2006-04]." The Department described the purpose and effect of the temporary variances, set out requirements that must be met in order for the temporary variance to remain in effect, and outlined requirements for elevator owners to request a temporary variance. In addition to information regarding temporary variances, the Department reiterated that "ASME A17.3 (1996) code applies to all existing elevators according to the 2002 revision of the Florida Building Code." In an undated document entitled "Current Practices" related to elevators, found on the Department's official website, the Department made the following statement: In recent months there has been some confusion regarding which version of the safety code the division uses to conduct safety inspections. The division relies upon Chapter 399, Florida Statutes; 61C- 5(1)(a), Florida Administrative Code; and Chapter 30 of the Florida Building Code. The division follows Chapter 30 of the Florida Building Code which in turn adopts ASME A17.1 and ASME A17.3 as governing the maintenance of elevators. Consequently, when inspecting elevators, pursuant to 399.061, Florida Statutes, the division uses ASME A17.1 and A17.3 codes. Nothing has changed the division's reliance on any of these documents. The division has not ceased enforcing A17.3.
The Issue The issues are (1) whether engaging in air conditioning contracting regulated by the Florida Electrical Contractors Licensing Board pursuant to Section 489.500 et seq. Part II, Florida Statutes, constitutes exceeding the scope of one's license as an electrical contractor, (2) whether performing air conditioning contracting in the name of "Dixon's Heating and Air Conditioning" constitutes operating in a name other than the name his electrical contracting license is issued in, contrary to Subsection 489.533(1)(l), and (3) whether Respondent willfully violated the building codes by venting the heater improperly, failing to get a permit and get work inspected.
Findings Of Fact Notice of hearing was given to Respondent at Route 2, Box 595, Yulee, Florida 32097. Arnold Dixon is and has been at all times material to this case a registered electrical contractor, license number ER0004417. (Pet. Ex. 1 & 2) He has maintained his address of record as Route 2, Box 595, Yulee, Florida 32097. (T-Pg. 6) He has held such license since 1976. (Pet. Ex. 1 & 2) Arnold Dixon does not hold a license, a state registration or certification to engage in contracting as a heating or air conditioning contractor. (Pet. Ex. 4 & 6) Arnold Dixon does hold a Nassau County Occupational License as an electrical contractor and as a heating and air conditioning contractor. No check of local records was conducted to see if he had a local license as an air conditioning contractor. (T-Pg. 22) On or about June 1985, the Respondent's company, Dixon's Heating and Air Conditioning, contracted to install an air conditioning and heating unit at the home of John Williams for a contract price of $1985. (Pet. Ex. 5 and T-Pgs. 10 & 11) The work on this contract was done by David Everett, who negotiated the contract. The Respondent's company, Dixon's Heating and Air Conditioning, did not obtain a permit to perform the work at the Williams' residence. Inspections on the Williams' job were not called for by Dixon's Heating and Air Conditioning. Permits and inspections were required by the applicable building code. (T-Pgs. 25 & 26) Entering into a contract to perform air conditioning and heating work and performing such work is air conditioning contracting, which is regulated under Part I, Chapter 489, Florida Statutes. After installation by Dixon's Hearing and Air Conditioning, the Williams' heating system generated carbon monoxide when operating because there was insufficient fresh air being provided to the unit. Because the air intake was in a closet which restricted the air supply to the hot air handling system, the air handling unit sucked fumes from the exhaust side of the unit back through the unit's combustion chamber and circulated it through the house. The longer the unit ran, the more debris was trapped in the louvered door of the closet and the more combustion gases were pulled through the combustion chamber and distributed through the house by the air handling unit. (T-Pg. 34) According to the manufacturer's representative, the hot air return is required to be ducted into the unit. In this case, the return air was pulled from inside a closet which had louvered doors. No duct was used and this installation was not in accordance with the manufacturer's instructions. Although the unit as installed was unsafe and had the potential to kill, no evidence was received that failure to install the unit in accordance with the manufacturer's instructions was a violation of local building code. (T-Pgs. 34- 38) Dixon's Heating and Air Conditioning did not hold itself out to be and was not engaged in electrical contracting in fulfilling the Williams' contract. Dixon's Heating and Air Conditioning did hold itself out to be an air conditioning contractor and the work performed in fulfilling the Williams' contract was air conditioning contracting.
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
