The Issue Whether Petitioner is entitled to be certified by endorsement as a standard building inspector.
Findings Of Fact Respondent is the agency of the State of Florida that certifies standard building inspectors pursuant to the provisions of Part XII of Chapter 468, Florida Statutes (consisting of Sections 468.601 - 468.633). By application dated November 7, 1996, Petitioner applied for certification as a building inspector. This application contemplated that Petitioner would sit for the certification examination. Respondent determined that Petitioner was qualified to sit for the Principles and Practice portion and the Technical portion of the certification examination. Petitioner did not achieve a passing score on the certification examination. Consequently, his application for certification was rejected. By application dated December 22, 1997, Petitioner applied for certification as a building inspector without having to take the licensure examination. This was properly construed by Respondent to be an application for certification by endorsement. Petitioner requested Respondent to waive the certification examination pursuant to the provisions of Section 468.613, Florida Statutes, which provide as follows: The board shall examine other certification of training programs, as applicable, upon submission to the board for the consideration of an application for certification by endorsement. The board shall waive its examination, qualification, education, or training requirements to the extent that such examination, qualification, education, or training requirements are determined by the board to be comparable with those established by the board. By his application dated December 29, 1997, Petitioner sought certification based upon his qualifications1 and upon what his counsel referred to as "substantially equivalent" exams. The "substantially equivalent" exams to which counsel for Petitioner referred were to the examinations Petitioner passed in order to be licensed as a general contractor and as a roofing contractor. Petitioner's application reflects that he passed licensure examinations during 1983 in Broward County and in Dade County in the general contractor category. Petitioner passed a similar examination in Palm Beach County, Florida, in 1986. Part XII of Chapter 468, Florida Statutes, was created by Chapter 93-166, Laws of Florida. Prior to 1993, there was no state-wide certification of building inspectors. There was no evidence as to the contents of the examinations Petitioner passed in 1983 and 1986, and there was no evidence as to the contents of the certification examination administered by Respondent to candidates for certification as building inspectors. Consequently, there is no basis upon which a comparison of these examinations can be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for certification by endorsement be denied. DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 April, 1999.
The Issue Whether the Respondent committed the violation alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating building code administrators and inspectors. At all times material to the allegations of this case, the Respondent was either an applicant for licensure or held a building inspector license, license number BN 0002765. At all times material to this case, the Respondent was employed by the Martin County Building Department as a Building Inspector. Harriet R. Edwards owns a residence located at 2595 Hickory Avenue, Jensen Beach, Florida. This home is located in Martin County, Florida. At some point in early 1996, it became Ms. Edwards' desire to construct an addition to her residence. She retained a contractor to perform the work and returned to Ohio during the time of the construction. When Ms. Edwards returned to Florida she was dissatisfied with the quality of the work. Mr. Joyce, Ms. Edwards' friend, expressed that they had expressed a desire for, and requested only, a high quality of work for the addition to Ms. Edwards' home. Upon investigation it was discovered that the permit card located at the construction site had been initialed by the Respondent. All of the inspections listed on the permit card occurred prior to December 17, 1996. The Respondent was issued a provisional license to perform building inspections on or about December 17, 1996. All of the inspections initialed by the Respondent had been performed by another inspector employed by the Martin County Building Department, Bobby T. Chambers. Mr. Chambers was fully licensed at the times of the inspections and acted as the Respondent's training supervisor. The Respondent accompanied Mr. Chambers during a training period during which time Mr. Chambers was to instruct the Respondent in the procedures and practices of the Martin County Building Department. At all times material to the allegations of this complaint, the Martin County Building Department allowed unlicensed employees to assist its inspectors at construction sites. Such employees were authorized to initial permit cards and to radio to the main office the information regarding inspections performed at the job sites. Because of this informal and haphazard reporting system the official records maintained by the County falsely reflected that the Respondent had performed the inspections listed in this Administrative Complaint. He did not. The records were maintained inaccurately. By initialing the permit card and transmitting the information to the County, the Respondent was performing his duties as an employee-in-training and as directed by his supervisors. The Respondent did not intend to mislead officials and did not intend to file a false report required by law. As a result of the flawed training system used by the Martin County Building Department, this Respondent initialed permit documents prior to licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Building Code Administrators and Inspectors Board, enter a final order dismissing the Administrative Complaint against this Respondent. DONE AND ENTERED this 23rd day of October, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish 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 23rd day of October, 2000. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Michael A. Rodriguez, Esquire County Attorney's Office 2401 Southeast Monterey Road Stuart, Florida 34996 Leif Grazi, Esquire LAW OFFICES OF GRAZI & GIANINO, P.A. 217 East Ocean Boulevard Stuart, Florida 34995 Anthony B. Spivey, Executive Director Building Code Administrators and Inspectors Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material to these proceedings, Section 4-67 of the Building Regulations, Supplement Number 44, Pasco County Ordinances were in effect and said regulation is the applicable local law. During the applicable time period, the Respondent, ROBERT G. FELLENZ, SR., was registered by the State of Florida as a roofing contractor and held license number RC0027998. Mr. Fellenz is the qualifying agent for Fellenz Roofing Co., Inc. On or about March 24, 1987, the Respondent, FELLENZ entered into a contract with James J. Hoover to re-roof a portion of his residence located at 822 Crestfield Avenue, Holiday, Pasco County, Florida. On April 1, 1987, the Respondent went to the building department in Pasco County to acquire the necessary permit to begin the Hoover project. During the processing of the permit, the Respondent learned that a stop order had been placed on the job. His work crew had disobeyed his direct orders and began work before the permit was obtained. While the Respondent was in the process of having the stop order removed, he learned that his liability insurance had expired. Proof of liability insurance coverage was needed by the Respondent in order for the building permit to be issued by Pasco County on the Hoover project. The Respondent contacted his customer, Mr. Hoover, and explained that he had an insurance coverage problem which he needed to straighten out before work could continue on the roof, and before he could obtain the building permit. Mr. Hoover was not home on the day the re-roofing project was begun and completed by the Respondent. On April 3, 1987, the Respondent obtained liability insurance coverage which went into effect on that date. He began and completed the Hoover re- roofing project on that date. On April 6, 1987, the building department issued the building permit on the Hoover project. A final inspection was never called for by the Respondent. The Respondent has previously been found to have violated Section 489.129(1)(d), Florida Statutes, in Case No. 69097 Construction Industry Licensing Board.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Land Surveying Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapter 472, 455 and 120, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Administrative Complaint, Respondent, Lars Dohm, was licensed as a land surveyor in the State of Florida, having been issued license number LS0002358. Nona Chubboy, in January 1989, was the owner of a lot described as Lot 25, Block J, Tierra Verde, Unit 1, Fourth Replat, Pinellas County, Florida, also known as 727 Columbus Drive East, Tierra Verde, Florida. Ms. Chubboy intended to build a dwelling on the lot, and secured building plans for the dwelling. She was to be her own contractor. In early 1988, she brought the building plans to the Respondent, and asked him to stake out only the lot at that time. Respondent copied the dimensions of the lot and dwelling from the building plans, and returned them to her. In early 1989, Respondent was retained to do a stakeout survey of the house and lot. Respondent requested that a site plan be prepared. Mrs. Chubboy secured it from the house designed, and delivered it to the Respondent. 6 The site plan shows a set back of 20 feet to a series of dotted lines, then a total of the length of the building from front to back of 63 feet, and footage of 37 feet to the rear of the property, which totals the exact distance of the length of the lot, 120 feet. With the site plan and the dimensions of the foundation of the building in his possession, the Respondent proceeded to stake out the foundation of the dwelling on or about January 10, 1989, and prepared a stakeout survey, thereafter. Construction began almost immediately on the project upon the completion of Respondent's stakeout. The masonry work was completed, and the framing of the home began. On or after January 23, 1989, Mrs. Chubboy was concerned the dwelling was too close to the street, and she measured the distance between the foundation and the street. She found it to be set back 20 feet and not 24 feet as intended. As prescribed by Pinellas County, the front set back in the zoning category for 727 Columbus Drive East was 20 feet. Such restriction would preclude the construction of a four foot in depth balcony supported by vertical columns as planned by Mrs. Chubboy in the setback area. Pinellas County did permit her to put in three foot deep balconies but without vertical columns. Mrs. Chubboy was required to redesign the front portions of the second floor of her home by adding beams for balcony supports, because vertical columns could not be used for support. These changes added to the cost of construction. The balconies constructed were not as functional as originally designed and resulted in their restrictive use. On or after January 23, 1989, Respondent provided Mrs. Chubboy with a signed, sealed and certified stakeout survey dated January 23, 1989, showing that the foundation was staked 20 feet from the front of the property, and further indicated that the building stakeout was 59 feet in depth. However, this is at variance with the site plan showed a total building length of 63 feet. When Respondent was confronted with the discrepancy between the actual stakeout and the site plan, he indicated that Mrs. Chubboy should have checked his work, and he was not going to do anything about the discrepancy. The stakeout survey contained the dimensions of the foundation layout, as contained in the building plans (59 feet), which were not contained in the site plan (63 feet). The as-built survey showed where the building was actually constructed, and the foundation was constructed exactly where Respondent staked the foundation. The site plan was inconsistent with the stakeout survey. The site plan clearly shows that the stakes should have been placed 20 feet from the front of the lot to a projection on the building, and the building should have a 63 foot depth from that point. The back of the lot was shown as 37 feet, which totals the length of the lot or 120 feet. The total dimensions of the building could not have been laid out from the site plan, as there is insufficient information on the site plan to give proper dimensions for the building. The dimensions of the building staked out were in accord with the dimensions on the building plan, as evidenced by the stakeout survey. The site plan does conflict with the building plan, as the site plan shows the layout of the building from front to back totals 63 feet. However, it also includes a projection which was intended to represent the second floor balconies in dotted lines. The stakeout survey indicates that the building length was 59 feet. In any event, the back of the building in the site plan is 83 feet from the front of the lot, but as it was staked, it was 79 feet. A skillful surveyor exercising ordinary prudence should have ascertained from the site plan and dimensions on the building plans that there was a 20 foot setback to a vague object. If you then examine the 63 feet shown on the site plan, and sketch out the 59 feet shown on the building plan, there is a four foot discrepancy between the 20 foot setback and where the building is supposed to start. The site plan was vague, and a skilled surveyor would have contacted his client for more specific information, and under such circumstances, should not have proceeded with the job until he had more specific information. A contractor or property owner has a right to rely on the professional ability of a surveyor to stake out the building site in accordance with the site plan or building plan. It is not the client's responsibility to check on the accuracy of the work of a professional. The purpose of a building's stakes is to mark the corners of the building in such a manner that construction can proceed from the stakes. The stakes were not to be moved. An "envelope-type" stakeout is a stakeout where the builder is free to move the building around. It is used where expert builders set their own offsets. It is not the type of stakeout required here. Such stakeouts were not for use by a person of Mrs. Chubboy's experience, nor is it indicated that Respondent was asked to do anything but stake specific corners. Respondent's assertion that the offset stakes were set so that the building could be moved is not credible. The "as-built" survey indicated that the building was placed directly where the stakes were placed by Respondent. Respondent further indicated that he was aware of the discrepancy of four feet between the building plan and the site plan, and chose to proceed with staking the house with a 20 feet set back and 59 feet in depth which added four feet to the back yard. This error by Respondent constitutes negligence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That Respondent pay an administrative fine of $1,000. That Respondent be placed on probation for one year subject to such reasonable conditions as the Board may specify. DONE AND ENTERED this 21st day of May, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 21st day of May, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11(in part), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 30, 31, 32, 33. Rejected as not supported by clear and convincing evidence: paragrahs 11(in part: cost of change orders in the design of the home), 12, 13, 34. Rejected as argument: paragraph 28, 29 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3(in part), 5. Rejected: paragraph 3(in part), 4, 6. COPIES FURNISHED: William S. Cummins, Esquire Senior Attorney Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 Angel Gonzalez Executive Director Board of Professional of Land Surveyors 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel 1940 N. Monroe Street Tallahassee, FL 32399-0792 Mr. Lars Dohm Apartment #611 5790 34th St. St. Petersburg, FL 33711
The Issue Whether petitioner was required or entitled to enroll in the Florida Retirement System at any time prior to March of 1989?
Findings Of Fact In the winter of 1979, petitioner DeWayne Manuel began performing building inspection services for Gulf County. He had responded to a newspaper advertisement entitled "JOB OPPORTUNITY," which stated, "Work will be under supervision of Building Inspector . . . Equal Opportunity Employer." Respondent's Exhibit No. 9. On the recommendation of E. F. "Red" Gunn, then head of Gulf County's Building Department, the Board of County Commissioners engaged him "temporarily" as a building inspector on March 13, 1979. Testimony of Manuel and Gortman. In the view of Commissioner Jimmy O. Gortman, Mr. Manuel was treated no differently than any other county employee. But Gulf County's Building Department was funded from permit fees, rather than from general county revenues. The building department was not "on the ad valorem tax budget." Testimony of Gortman; Stipulation. For the period March 13, 1979, to September 30, 1979, Gulf County paid petitioner $1,525.52. For the fiscal year ended September 30, 1980, Gulf County paid petitioner $3,840.83. Effective December 1, 1980, petitioner became responsible for all building inspections in Gulf County, not just those on projects north of the intracoastal canal. Petitioner's Exhibit No. 1A, Book 11, pp. 366-7. For the fiscal year ended September 30, 1981, Gulf County paid petitioner $13,319.83. For the fiscal year ended September 30, 1982, Gulf County paid petitioner $22,188.00, which represented permit fees from which a telephone expense of $24.00 a month, aggregating $288.00, had been deducted. Before the fiscal year ended September 30, 1982, Gulf County had deducted no expenses from permit fees, in calculating petitioner's compensation. Deposition of McCroan. At a county commission meeting on January 11, 1983, Mr. Gunn gave "an oral report on . . . problems" "with Building Inspector DeWayne Manuel's job performance," "fired Building Inspector Manuel and then resigned himself." Petitioner's Exhibit No. 1A, Book 12, p. 305. But, before the meeting concluded, "Mr. Gunn agreed to continue working as Building Official . . . and he then rehired Mr. Manuel as Building Inspector." Id., p. 306. When the county commission met on May 24, 1983, Mr. Gunn resigned, effective June 1, 1983, and "recommended the Board hire DeWayne Manuel as the Building Official." Petitioner's Exhibit No. 1A, Book 12, p. 381. At the same meeting, the Board voted unanimously to accept this recommendation. Id. For the fiscal year ended September 30, 1983, Gulf County paid petitioner $18,894.40. At its meeting on September 13, 1983, the "Board agreed to pay DeWayne Manuel . . . $1,130 per month as long as funds are available from the Building Permit Revenues," Petitioner's Exhibit No. 1A, Book 12, p. 447, thereby "capping" his compensation from the Building Department for the first time. Perhaps because he also served an eight- or nine- month stint as acting mosquito control director, however, Gulf County paid petitioner $41,985.28 during the fiscal year ended September 30, 1984. Testimony of Manuel; Deposition of McCroan. On November 13, 1984, the Board voted to pay "DeWayne Manuel $35,540 per year on a contract basis." Petitioner's Exhibit No. 1A, Book 13, p. 215. Although the Board voted changes in his rate of compensation thereafter, his income no longer depended on Building Department collections. For the fiscal year ended September 30, 1985, Gulf County paid petitioner $36,532.01; and for the fiscal year ended September 30, 1986, Gulf County paid petitioner $39,011.98. McCroan Deposition. During calendar year 1986, Gulf County paid petitioner $39,315.91. During calendar year 1987, Gulf County paid petitioner $41,929.77. During calendar year 1988, Gulf County paid petitioner $44,891.75. Respondent's Exhibit No. 6 to Deposition of Lister. On May 24, 1988, in response to audit criticisms, the Board entered into its first written contract with petitioner, which provided: Revenue source - All monies received from the sale of all types of building permits and interest earned on funds received from the sale of building permits in Gulf County shall be the revenue source for all costs and expenses of the Building Inspection Department. Separation of Costs and Expenses The Board of County Commissioners (Gulf County) shall pay or provide the following expenses or resources out of the above mentioned revenue source: secretary, office space, office supplies, administrative costs for operation of department utilities, telephone expenses (except for telephone expenses listed in Section II. B. 1. below) errors and omissions insurance coverage and a contract price of $40,905.00 to the Building Official for FY 87-88 (paid monthly). Contract price is calculated in the following manner. A $40,000.00 figure was established by the Board of County Commissioners for FY 86-87 (Book 14 Page 119). The contract price was increased for FY 87-88 by the same amount that all other Court House employees received, $455.00. In FY 87-88 the contract price was increased by $405.00 represents 2% of $22,500.00 which was estimated to be the salary after the deduction of expenses (listed in section B. 1., 2., 3., and 4. below). Building Official - Out of the $40,905.00 contract price, the Building Official is to pay the following: Basic (monthly) mobile telephone expenses In-county travel expenses All benefits (i.e. F.I.C.A., retire-ment, vacation, health and life insurance) All income tax withholdings Contracted services to be performed by the Building Official Be available (in office, on inspections, in meetings, or etc.) a minimum of 40 hours per week. Be responsible for the operations of the Building Department. Be responsible for all inspections required by the Standard Building, Plumbing, Mechanical, Gas, Swimming Pool, and the National Electric Codes, as well as such other codes which may be adopted in Gulf County. Be responsible for the duties of the Local Administrator as defined in the Gulf County Flood Ordinance. Such other duties as may be directed by the Board of County Commissioners of Gulf County. This agreement shall expire September 30, 1988 and may be cancelled at an earlier date by either party for good cause, by giving thirty (30) days notice. Respondent's Exhibit No. 8 to Lister Deposition. The contract provisions reflected the relationship that had existed between petitioner and Gulf County for some time before it was actually signed. Later the same year, petitioner's status was called into question. On September 27, 1988, Mr. Manuel was a topic of discussion at the County Commission meeting. Chairman Birmingham stated that he is satisfied with the present system, and stated that if the Building Department contract is not valid, he will vote to hire Mr. Manuel as a full-time County employee. Commissioner Branch stated that he has no problem with Mr. Manuel, and stated that he is very dedicated to Gulf County. Commissioner Traylor also stated that Mr. Manuel has done a fine job. After discussion, Chairman Birmingham requested that Attorney Rish check to see if different arrangements need to be made concerning this position (make him a permanent County employee, etc.). Upon inquiry by Ms. Arnold about the contract ending on September 30, 1988, and about being able to apply for the job, Attorney Rish stated that anyone could apply at any time. Upon further inquiry by Ms. Arnold about Mr. Manuel having a life-time contract, Chairman Birmingham stated that, as far as he is concerned, Mr. Manuel has the job unless he messes up. Petitioner's Exhibit No. 1A, Book 15, pp. 698-9. Two additional entries in board minutes reflect pertinent developments on February 14 and 28, 1989, respectively: Commissioner Gortman moved that the Board hire Building Inspector Manuel as a permanent County employee, under the direction of the Board (to negotiate salary, travel, etc.), effective March 1, 1989. Chairman Birmingham gave the Chair to Vice Chairman Peters, and seconded the motion. After discussion about the history and the financial situation of the Building Department, Commissioner Creamer stated that he would like an opportunity to discuss this matter with Mr. Manuel before making a decision. Chairman Peters stated that he is under the same impression as Commissioner Creamer, and he is also concerned about whether or not the job should be advertised. Upon inquiry by Commissioner Gortman, Attorney Rish reported that it would be legal for the Board to hire Mr. Manuel as a regular County employee, if Mr. Manuel is agreeable (he also stated that he will need to read the existing contract). After discussion, the motion passed with the following vote: Commissioners Birmingham, Creamer Gortman, and Parker voted yes. Chairman Peters voted no. Chairman Peters returned the Chair to Commissioner Birmingham. Chairman Birmingham then requested that Commissioner Gortman and Commissioner Parker work out the details of Mr. Manuel's duties and his salary, travel, etc., and report back to the Board at the next regular meeting. Upon inquiry by Commissioner Gortman, Attorney Rish reported that the Board has no problem with breaking the contract, if Mr. Manuel has no problem with it. . . . Commissioner Gortman moved that the Board hire DeWayne Manuel as a County employee with duties as Building/Fire Official (putting the Building Department under the direction of the Board) for the remainder of this fiscal year at $16,380.00 - salary, $1,230.00 - social security, and $2,356.00 - retirement, which totals $19,966.00 plus $.17 per mile for in-County travel not to exceed $4,760.00, which will give a grand total of $24,726.00 (to re-negotiate next fiscal year). He also included in his motion that Mr. Manuel will work 40 hours per week (and on weekends, if needed) under this salary, doing the Building Department work plus anything the Board directs him to do. Commissioner Gortman stated that Mr. Manuel is to have 10 years seniority, and is to be allowed to participate in the State retirement program (he will have to pay any back retirement). Upon inquiry by Commissioner Creamer and after discussion about the rate per mile for other County employees. Commissioner Gortman also included in his motion that the Board pay all County employees $.17 per mile for in-County travel and that the revenue from the inspections will go into the Building Inspector's budget. Commissioner Parker seconded the motion. Commissioner Peters stated that he feels this job should be advertised. Commissioner Parker stated that Mr. Manuel has been working without a contract since September and if he has worked this long without a contract, he should have the benefit of the doubt. The motion then passed with the following vote: Chairman Birmingham and Commissioners Creamer, Gortman, and Parker voted yes. Commissioner Peters voted no. Jean Arnold discussed that she is opposed to the Building Department funds not being controlled in the past, and is opposed to Mr. Manuel being the Building Inspector. . . . On March 1, 1988, there was no change in petitioner's hours, duties, job description or the number of people working in the Gulf County Building Department. The separate fund containing building permit fees was abolished, and petitioner began to be paid from general revenues, including ad valorem taxes. He also enrolled as a regular member of the Florida Retirement System on March 1, 1989. Testimony of Gortman and Birmingham. Gulf county prepared and filed 1099 forms reflecting moneys paid petitioner for the years 1985 through 1988, and for the first two months of 1989. Before 1985, the county did not prepare either a W-2 form or a 1099 form or otherwise report petitioner's income to the Internal Revenue Service. The only W- 2 form the county produced for him covered the period from March 1, 1989, until he left Gulf County's employ on September 30, 1989. Asked why she had not produced W-2 forms for petitioner before March 1, 1989, Donna R. McCroan, the county payroll clerk, explained that "[h]e had not gone through my payroll system, and that unless you run them through - - put his figures through my payroll system, my figures wouldn't balance." Deposition of McCroan, pages 14 and 15. At different times, Gulf County paid petitioner weekly, bi-weekly and monthly. Petitioner was listed as a vendor, rather than as an employee, for some time before March 1, 1989. At first, petitioner received compensation equivalent to the building permit fees Gulf County took in, during the pertinent period, on account of construction permitted in Gulf County, north of the intracoastal canal. Eventually added to this sum was a fraction of the fees Gulf County collected on behalf of Wewahitchka and Ward Ridge; and fees from permits issued for Gulf County south of the canal. Originally, petitioner's compensation was never based on invoices he submitted. For each pay period, the county clerk's office prepared a voucher listing the building permits that issued during that pay period. Petitioner's Exhibits Nos. 6 and 7. Because applicants for building permits paid fees as or before permits issued, before inspection services were needed, petitioner's compensation varied from period to period, not with the number of inspections or other work that he performed, but with the number of building permits "pulled." At no time was he paid for inspections as piecework. At county expense, petitioner was trained as a building inspector. He performed building inspection services under Mr. Gunn's supervision until the latter's retirement. Petitioner was obliged to follow the methods of inspection prescribed by the building code, but free to determine whether or not code requirements were met in a particular case. He had to use certain receipt and other forms, and keep records in a prescribed fashion to facilitate audits. No written job descriptions defined the duties of Building Department employees. Even when petitioner answered to Mr. Gunn, the Board of County Commissioners sometimes assigned him tasks directly, in areas unrelated to the building department. Petitioner helped obtain a permit from the state Department of Environmental Regulation for the county landfill, dealt with the state Department of Transportation on questions concerning bridges, dealt with the state Department of Corrections in connection with the county jail, secured a mosquito control grant and various other grants for Gulf County, and performed other jobs as directed. When working on things other than building inspections, the county commissioners often told him "exactly what to do." Testimony of Birmingham. When Gulf County hired him, Mr. Manuel sold his Western Auto Store and, beginning in April of 1979, devoted 40 hours or more a week to county duties. He never took vacations. His compensation was not reduced the only time he missed work for illness. Except for time in the field, he did all his work on Gulf County's "premises," in an office the county supplied. Gulf County provided not only an office but, eventually, a secretary and other building inspectors. Petitioner supervised these county employees. The county paid workmen's compensation premiums for petitioner, furnished office supplies and equipment, including a computer; and equipment for use in the field, including piling boring equipment and an electrical inspection tool known as a Megger. Until petitioner acquired a mobile telephone, Gulf County paid all telephone expenses the Building Department incurred. Afterwards, it paid telephone expenses except for the basic mobile telephone charge. Gulf County reimbursed petitioner for travel out of the county on the same basis that it reimbursed all county employees. Building inspection services petitioner or county employees under his supervision performed for Wewahitchka or Ward Ridge occurred under the terms of intergovernmental agreements, and on behalf of Gulf County. Otherwise, petitioner performed no building inspection or other services for any person or entity other than Gulf County while he worked for the county. Upon Mr. Gunn's departure, petitioner assumed supervisory responsibilities for the Gulf County Building Department, and served as department head.
Recommendation It is, accordingly, RECOMMENDED: That respondent grant petitioner regular membership in the Florida Retirement System for the period April 1, 1979, to February 28, 1989. DONE and ENTERED this 1st day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 3, 4, 5, 6, 7 and 8 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 1 and 2 refer to a county ordinance not in evidence. Petitioner's proposed finding of fact No. 9 pertains to a subordinate matter. Respondent's proposed findings of fact Nos. 1, 4 through 8 and 10 through 16 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 2, the fees were for building permits, not for inspections as such. With respect to respondent's proposed finding of fact No. 3, the evidence showed he took sick leave. With respect to respondent's proposed finding of fact No. 9, there was testimony that the County's payroll clerk prepared the vouchers. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 De Wayne Manuel P.O. Box 7593 Daytona Beach, FL 32116 De Wayne Manuel 212 Tapper Drive P.O. Box 305 Port St. Joe, FL 32456 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
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
