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
The Issue Whether Respondent engaged in negligence in the practice of engineering, in violation of section 471.033(1)(g), Florida Statutes (2014), and implementing rules,1/ as alleged in the Administrative Complaint, and, if so, what is the appropriate sanction?
Findings Of Fact The Board is the state entity charged with regulating the practice of engineering, pursuant to chapter 455, Florida Statutes. FEMC provides administrative, investigative, and prosecutorial services to the Board pursuant to section 471.038. At all times material to this case, Mr. Holt was licensed as a professional engineer in the state of Florida, with license number PE 15252. The Board has adopted Responsibility Rules of Professional Engineers (Responsibility Rules). These rules are contained in Florida Administrative Code Chapters 61G15-30 through 61G15-36. Mr. Holt is required to comply with the Responsibility Rules when performing engineering services. On December 3, 2014, FEMC received a complaint filed by Mr. John Farinelli, chief building official for the City of Belle Glade, Florida (City). Mr. Farinelli had reviewed plans for three residential construction projects which had been submitted to the City for general building permits. The engineering plans for each project had been signed, sealed, and dated by Mr. Holt. Mr. Farinelli found what he believed to be numerous errors on the plans, resulting in the complaint against Mr. Holt. After receipt of the complaint, the engineering plans were reviewed by professional engineers retained by FEMC. Mr. Homer A. Ooten, Ph.D., P.E., LEED-AP, reviewed the electrical and mechanical elements of the plans; Mr. Roger L. Jeffery, P.E., LEED-AP, reviewed the structural elements of the plans. Based substantially upon engineering reports prepared by these engineers, an Administrative Complaint against Mr. Holt was filed on or about September 15, 2015. Mr. Holt filed an "Answer to Administrative Complaint" on October 23, 2015. In that pleading, he admitted that: Rule 61G15-30.002(1), Fla. Admin. Code, mandates that Respondent, as the engineer of record for all projects delineated in the Specific Allegations, is professionally responsible for the documents prepared. As such, Respondent is responsible for producing documents that comply with the applicable portions of the Responsibility Rules. In response to other portions of the Administrative Complaint setting forth requirements of the Responsibility Rules concerning electrical systems design, he repeatedly stated "any departures are justified by the specific circumstances of the project in question and the sound professional judgment of the Respondent." In response to specific allegations of material deficiencies in the electrical engineering design documents, Mr. Holt responded that any omissions were "negated by Respondent's reference to the NFPA 70 National Electrical Code 2008." Mr. Holt made numerous similar claims that departures were justified based on circumstances and his professional judgment in response to portions of the complaint setting forth the requirements for mechanical systems design, involving both heating, ventilation, and air conditioning (HVAC) and plumbing elements. He also noted that "Respondent merely designed a hole for a future wall unit." Although Mr. Holt thus accepted responsibility for electrical and mechanical elements of the drawings prior to hearing, arguing that any departures were justified in the exercise of his "professional judgment," he later took a different tack. In testimony at hearing, Mr. Holt maintained that he signed and sealed the documents only as a structural engineer and that he did not therefore assume responsibility for any elements of the drawings constituting electrical or mechanical engineering. On cross-examination, Mr. Holt was evasive when asked who was responsible for the electrical and mechanical elements of the drawings he had sealed: Q. Whose work was it, if it wasn't yours? A. Whose work was it? Q. Yes. A. I don't know for sure. A lot of times we include air conditioning companies, electrical contractors. Depends. Q. Somebody drew the drawings. Did your office draw the drawings? A. What are you getting at? Q. I'm just asking a question. A. What was included or what was drawn? Q. I just want to know -- somebody drew these documents. A. Yes. My draftsmen drew them all up, yes. Q. They were all drawn up in your office? A. In my office? He has his own offices. Okay. Q. They were all drawn up by your draftsmen? A. Yes. Q. And that included the electrical work, mechanical work, and structural work all by your draftsmen? A. The structural input was mine. He drew it, yes. As was ultimately clear from his testimony, Mr. Holt was well aware that no other engineer was responsible for any part of the engineering drawings for the three residential construction projects. Mr. Holt was in responsible charge for the preparing, signing, dating, sealing, and issuing of all three of the engineering plans, whether he prepared them personally or whether they were prepared by his draftsmen. He was the engineer of record for all three projects. As he admitted, he was fully aware that the engineering drawings were submitted under his seal and filed for public record with the City for building permits. He knew that the drawings under his seal would be, and were, reviewed by City officials, not only as to structural elements, but also for electrical and mechanical elements, as the City was required to do. At hearing, in support of his position that he was not responsible for anything on the drawings other than the structural work, Mr. Holt noted that his name and address had appeared under the words "Structural Design Review by:" on the drawings for two of the projects. He added that he also "should have put that on there" for the third set of drawings. The title "Structural Engineer" also appears underneath Mr. Holt's name and address on the third set of drawings. Mr. Holt's signature appears in a different area on all three drawings, followed by the letters "P.E." and Mr. Holt's engineering license number. The references to "Structural Design Review" and "Structural Engineer" on the engineering drawings near his name and address were not sufficient to indicate to a City official or other person reading the drawings that, by use of these, words Mr. Holt intended not to accept responsibility for various elements of the drawings. Under the circumstances of this case--in which the engineering drawings were prepared under Mr. Holt's responsible charge, and he knew that they would be filed for public record to obtain building permits--it is disingenuous for Mr. Holt to attempt to disclaim responsibility because of the language "Structural Design Review by:" or "Structural Engineer." His argument that, at worst, he simply failed to clearly indicate the limits of his responsibility, is completely rejected.2/ As to the structural engineering elements for which Mr. Holt did accept responsibility at hearing, he maintained that any departures from the Responsibility Rules were justified by the specific circumstances of the project in question and his sound professional judgment. Mr. Holt also argued that his general citation to the Florida Building Code (FBC) put the contractor on notice of all of the construction code requirements. Finally, he argued that certain specifications did not need to be included in the engineering drawings if those specifications were commonly known in the county or area where the construction was to take place. The testimony of Mr. Ooten and Mr. Jeffery at hearing convincingly refuted all of Mr. Holt's contentions. First, departures from the Responsibility Rules, even if they are justified by circumstances and the professional judgment of the engineer--which these were not--must be documented. Second, general references to applicable electrical, mechanical, and building codes do not incorporate the entire content of those codes so as to meet the specific documentation requirements of the Responsibility Rules. Third, while Mr. Holt's testimony that specifications for certain construction materials were well known in his area is credited, his argument that this eliminated the requirement to include them on the engineering drawings was completely unsupported by the Responsibility Rules or the FBC, and is rejected. Findings related to the specific allegations in the Administrative Complaint are discussed below. Mr. Holt testified that he did not dispute the opinions of Mr. Ooten as to the electrical and mechanical deficiencies in any of the plans. Betancourt Project On or about July 29, 2014, Mr. Holt signed, sealed, and dated revised engineering drawings for a conversion/renovation project located at 117 Northwest Avenue H Place, Belle Glade, Florida (Betancourt Project). The Betancourt Project drawings included sheets S-1 through S-3. It was clearly and convincingly shown that the electrical engineering design documents for the Betancourt Project are materially deficient as follows: The drawings contain an electrical riser diagram, but no short circuit values and no voltage calculations for the feeders and customer-owned service conductors. If the circuit breakers and the wires are undersized, then the electrical systems can overheat and that affects the safety of the occupants. The panel schedule does not contain the information it should. It has blank spaces that do not indicate whether there are missing circuit breakers. Conductor sizes, insulation types, circuit-interrupting devices, and fault current interrupting capability are omitted. No surge protective devices are shown on the drawings. While Mr. Holt argued at one point that no surge protection was required, Mr. Ooten credibly testified that the Responsibility Rules required it. He also noted that if there had been a justified departure from this requirement, a notation to that effect on the drawings was required, and there was none. The main electrical panel was not located on the plans. The fact that it was shown on the electrical riser diagram is not sufficient. The drawings show no circuitry for outlets, equipment, devices, or smoke detectors. The reference in the panel schedule to "building receptacles" is not sufficient. There is no outdoor receptacle outlet shown at the front and back of the one-family dwelling. There is no 125-volt receptacle outlet shown at an accessible location within 25 feet of HVAC equipment. The drawings do not contain information required by section 107.3.5 of the Florida Building Code-Building (FBC-B), requiring documents to show electrical overcurrent protection and wiring methods and materials. The legend on drawing sheet S-2 has a symbol for a ceiling-mounted light (style by contractor), but the drawings contain no specifications for any fixtures. The drawings show no circuitry for any lighting fixtures on this project. The lighting design drawings contain no energy form or calculated values to demonstrate compliance with the Florida Energy Code for Building Construction. The HVAC engineering design documents for the Betancourt Project show a new wall air conditioning unit, but no size, no voltage, no disconnecting means, and no circuit for the unit. While it was clearly shown that section 2701.1 of the FBC- B requires that electrical equipment shall be designed in accordance with the provisions of the National Fire Protection association (NFPA) 70, the National Electric Code (NEC), it was not clearly shown what provision of the NEC, if any, these omissions from the drawing violated. Section 1901.4 of the FBC requires construction documents to contain the specified compressive strength of concrete and the specified strength or grade of reinforcement. As Mr. Jeffery testified, structural engineering drawings also need to contain detail as to how a piling is anchored to the pile cap, particularly in plans designed, as these were, to withstand a wind sheer of 170 miles per hour. Mr. Jeffery also credibly testified that the overlap of reinforcing steel needed to be a minimum of 18 inches and that one of the bars was shown as 12 inches in total length, with about eight inches embedded into the footing, leaving only four inches of overlap. It was clearly and convincingly shown that the structural engineering design documents for the Betancourt Project are materially deficient as follows: The strength of the concrete and reinforcing steel are missing. There is no detail indicating how the piling is connected to the pile cap. The lap length of the reinforcing steel in the masonry walls is too short. Bullock Project On or about May 19, 2014, Mr. Holt signed, sealed, and dated revised engineering drawings for a residential conversion/renovation project located at 251 Noah Court, Belle Glade, Florida (Bullock Project). The Bullock Project drawings included sheets A-1 through A-3. It was clearly and convincingly shown that the electrical engineering design documents for the Bullock Project are materially deficient as follows: There is an electrical riser diagram, but it contains only one panel and one electrical meter. The drawings contain some conductor sizes, no insulation types, some circuit interrupting devices, and no fault current interrupting capability. No surge protective devices are shown on the drawings, and there is no notation on the drawings indicating any reason for departure from this requirement. One electrical distribution panel is shown for the south unit on Sheet A-1, but no panel is shown for the north unit. No meters are shown. The drawings show no circuitry for outlets, equipment, devices, or smoke detectors. The drawings do not indicate that an outdoor receptacle outlet is to be installed at the front and back of the Bullock Project. The drawings contain partial load computations for the panel schedule on sheet A-1, but they are inadequate to explain the wiring. The calculation is 99 amps, but that is serving into only one panel, which is not an appropriate design. The drawings do not contain information required by the FBC. Section 107.3.5 of the FBC-B requires branch circuitry and separate overcurrent protection for each of the two units, wiring methods and materials, and load calculations. While some information is included, it is incomplete, and some is incorrect. The legend on drawing sheet A-1 has a symbol for a ceiling-mounted light, but the drawings contain no specifications for any lighting fixtures. The drawings show no circuitry for any lighting fixtures for either unit. The lighting design drawings contain no energy form or calculated values to demonstrate compliance with the Florida Energy Code for Building Construction. It was clearly and convincingly shown that the HVAC engineering documents for the Bullock Project are materially deficient as follows: The drawings did not contain adequate information for the City to determine compliance with codes and ordinances. The drawings contain no air conditioning equipment schedules for air handling units and condensing units. The drawings do not contain cooling coil requirements based on sensible heat, latent heat and total heat gains; outside and inside design dry and wet bulb conditions; nor outside (fresh) air make-up conditions. The drawings contain no specifications for heating equipment. The drawings contain no condensate discharge piping layouts. No HVAC ductwork is shown on the drawings. The mechanical drawings do not contain all data required to complete the Florida Energy Code calculations, as required by the chapter 13 of the FBC-B. It was clearly and convincingly shown that the plumbing engineering design documents for the Bullock Project are materially deficient as follows: The drawings contain no plumbing equipment schedules. No potable water isometric diagrams are shown. Total water fixture units for either dwelling unit are not shown on the drawings. One isometric sanitary riser diagram is shown; however, total flow waste fixture units for both dwelling units are not shown on the drawings. No storm riser diagrams or area drainage calculations are shown on the drawings. The drawings contain no sanitary piping layouts, no cold water, no hot water, and no storm drainage piping layouts. Florida Building Code—Plumbing (FBC-P), 2010 Edition, is noted as an applicable plumbing code. However no other codes, design standards, or requirements are shown on the drawings. No specifications for materials for plumbing systems are shown on the drawings. It was clearly and convincingly shown that the structural engineering design documents for the Bullock Project are materially deficient as follows: The strength of materials for the reinforcing steel, grout, and masonry are missing. There is no detail indicating how the piling is to be connected to the grade beam. The engineer of record's engineering requirements for the delegated engineer for the wood roof trusses are missing. The phrase "pre-engineered wood trusses" appears, but no requirements. Morales Project On or about July 16, 2014, Mr. Holt signed, sealed, and dated engineering drawings for a residential extension project located at 1033 Whitaker Road, Belle Glade, Florida (Morales Project). The Morales Project drawings included sheets S-1 and S-2. It was clearly and convincingly shown that the electrical engineering design documents for the Morales Project are materially deficient as follows: The plan view on sheet S-1 shows the existing electric meter is to remain on the new covered patio, with no mention that the contractor needs to raise the height of the weather head so that it is at least eight feet above the roof as required by NEC 230.24. The drawings contain no panel schedules, no circuit interrupting devices, and no fault current interrupting capability. No surge protective devices are shown on the drawings. The drawings show no new panel, no existing panel, and no sizes, except for the addition of one 20-amp breaker. Whether or not a new or existing panel would have adequate physical space or electrical capacity to add the 20-amp breaker is not addressed. The drawings contain no circuitry for loads added by this project, or existing circuitry, and thus are deficient in circuiting all outlets, equipment and devices. NEC 210.52(E)(1) requires that at least one outdoor receptacle outlet be installed at the front and back of a one- family dwelling. No outlet is indicated. The drawings do not contain all information required by the FBC. Section 107.3.5 of the FBC-B requires that documents show electrical wiring, branch circuits, grounding, wiring methods and materials, and load calculations. The information that is provided is inadequate. The drawings contain no information on the performance specifications or number of lamps on the ceiling fans. The drawings show no circuitry for any lighting fixture, and no panel is shown. The design drawings contain no energy form or calculated values to demonstrate compliance with the Florida Energy Code for Building Construction. It was clearly and convincingly shown that the mechanical engineering design (HVAC) documents for the Morales Project are materially deficient in that the HVAC Scope of Work included a toilet exhaust fan for ventilation. No heat was specified, and the exhaust fan size was omitted from the drawings. It was clearly and convincingly shown that the plumbing engineering design documents for the Morales Project are materially deficient as follows: The drawings contain no equipment schedules for all plumbing fixtures, water heater, valves, and accessories. Potable water isometric diagrams and total water fixture units are not shown on the drawings. Total sanitary waste fixture units are not shown on the drawings. No storm riser diagrams or area drainage calculations are shown on the drawings. The drawings contain no piping layouts for cold water, hot water, sanitary, or storm drainage. The drawings acknowledge that FBC-P, 2010 Edition, is applicable to this project, but fail to list other applicable codes and standards. No specifications for materials for plumbing systems are shown on the drawings. It was clearly and convincingly shown that the structural engineering design documents for the Morales Project are materially deficient as follows: The strength of materials for the concrete, reinforcing steel, grout and masonry are missing. There is no reinforcing steel designated for the concrete piles. The lap length of the reinforcing steel in the masonry walls is missing. There is no detail indicating how the piling is connected to the pile cap. The drawings indicate that a 6" x 6" x 16" concrete masonry unit (CMU) block wall is an optional alternative. Contrary to Mr. Holt's argument, the bathroom walls are not interior walls in this design, as they are bounded by a porch, and this size block is inadequate to resist the design wind pressures. Mr. Holt failed to utilize due care in performing in an engineering capacity and failed to have due regard for acceptable standards of engineering principles in the Betancourt, Bullock, and Morales Projects. It was clearly and convincingly shown that Mr. Holt engaged in negligence in the practice of engineering in each project. Prior Discipline Mr. Holt was charged in FEMC Case No. 01-0159 with engaging in negligence in the practice of engineering. In 2002, he was disciplined by the Board in FEMC Case Nos. 0l-0159, 01- 0106, and 01-0170 after a settlement stipulation. Mr. Holt was charged in FEMC Case No. 2005048785 with engaging in negligence in the practice of engineering. In 2006, he was disciplined by the Board in that case after a settlement stipulation. Mr. Holt was charged in FEMC Case No. 2007068131 with engaging in negligence in the practice of engineering. In 2010, he was disciplined by the Board in that case after settlement stipulation. Mr. Holt was charged in FEMC Case No. 2007047569 with engaging in negligence in the practice of engineering. In 2010, he was disciplined by the Board in that case after settlement stipulation.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Board of Professional Engineers: Finding that John D. Holt, P.E., engaged in negligence in the practice of engineering, in violation of section 471.033(1)(g), Florida Statutes, and Florida Administrative Code Rule 61G15- 19.001(4); suspending his professional engineer license for a period of one year, to be reinstated under such conditions and terms, including a period of probation, as the Board finds appropriate; and imposing an administrative fine in the amount of $10,000.00. DONE AND ENTERED this 16th day of March, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2016.
The Issue The issue is whether Respondent engaged in the negligent practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes.
Findings Of Fact Respondent has been a licensed professional engineer in Florida since 1994, holding license number 47676. He is not licensed in any other states. Respondent is a member of the American Society of Civil Engineers, National Society of Professional Engineers, Structural Engineers Council, and National Academy of Forensic Engineers. He also serves as a subject-matter expert for the Florida Construction Industry Licensing Board, and he helps prepare and evaluate contractor licensing examinations. Respondent is also a licensed general contractor. This case involves engineering drawings that Respondent prepared for a residential project known as the Sorrentino Residence. The Sorrentino Residence is located in Hillsborough County. The drawings, which are signed and sealed by Respondent, represent that the design portrayed by the drawings is “in accordance” with the SBCCI Standard Building Code, 1994 Edition[, and t]he wind design was conducted using a 110 MPH wind speed.” Prior to the Sorrentino Residence, Respondent had been the engineer of residence for over 20 projects. About 10 of these projects had been wood-frame homes, such as the home designed and constructed as the Sorrentino Residence. The owner of the Sorrentino Residence purchased plans from Amerilink. A mechanical/electrical engineering firm, Parker-Stevens, obtained the consent of Amerilink to alter these plans for the Sorrentino Residence. One of the changes increased the thickness of the second floor, which raised the overall building height by 12 inches. Respondent became involved with the Sorrentino Residence when one of the principals of Parker-Stevens contacted him and asked if he would work on the project. The structural engineer who had started to work on the project had moved out of Florida prior to obtaining any permits. Respondent agreed to accept the assignment. Respondent worked on the drawings, as well as on other assignments, for six weeks. He required about 60 hours to perform all of the necessary calculations. Because of poor soil conditions at the lakefront lot at which the Sorrentino Residence was to be built, Respondent had to substitute pilings for a masonry stemwall. To preclude differential settlement of pilings, Respondent performed the calculations necessary to place the pilings so that each was within 10 percent of the others’ axial load. Respondent also performed calculations for numerous other purposes, including designing the beams, floor diaphragm, second-floor bearing wall, exterior walls, and structural ability to withstand wind loads. At the time that he began to work on the Sorrentino Residence drawings, Respondent was still a partner with Architectural Services and Engineering. In July 1997, two weeks after Respondent had sealed the drawings, Respondent became dissatisfied with the business practices of his partner, who was not an engineer, contractor, or architect, and left Architectural Services and Engineering. Construction on the Sorrentino Residence started about six weeks later. When Respondent left Architectural Services and Engineering, he was the sole qualifier for the company, which did not obtain another qualifier for eight months. Following Respondent’s departure from Architectural Services and Engineering, the owner of the Sorrentino Residence contacted Respondent to discuss the drawings. Because the contract was between the owner and Architectural Services and Engineering, Respondent’s former partner objected to any communication between Respondent and the owner and, among other things, made the complaint that led to the commencement of this disciplinary proceeding. At this point, Respondent chose not to have further contact with the owner or construction of the residence. Count One alleges that Respondent’s drawings are deficient because they fail to specify the necessary supplemental framing in the exterior walls of the living room and kitchen. Petitioner has failed to prove by clear and convincing evidence that Respondent’s omission of the supplemental framing constitutes negligence in the practice of engineering. First, not surprisingly, common field practice has addressed the recurring phenomenon of openings in exterior walls. After cutting studs for an opening, all contractors add headers, jack studs, and full-length studs on each side of the opening. The omission from drawings of an element readily supplied by common field practice is not negligent. The Hillsborough Building Department expects drawings to depict supplemental framing, at least if such detail is necessary to construct the building that is the subject of the drawings. This expectation does not establish negligence in this case for two reasons. First, as noted in the preceding paragraph, common field practice obviates the necessity of the depiction of the supplemental framing around openings in exterior walls; thus, such detail is unnecessary to construct the building. Second, the Hillsborough Building Department frequently rejects drawings and plans; thus, a departure from its requirements is not necessarily negligence, at least absent a showing that negligence in engineering is common in Hillsborough County. Additionally, neither the Standard Building Code nor applicable rules specify the minimum contents of drawings. Interestingly, several years ago, the Hillsborough County Building Department eliminated its minimum requirements for drawings. These facts suggest that categoric minimum requirements for drawings must yield to a case-by-case approach that can better address the myriad of circumstances that accompany each design project, including the complexity of the subject structure, the significance of the item omitted from the drawings, and the likelihood that custom or practice will supply the information missing from the drawings. The preceding paragraphs sufficiently address the issue raised by Count One. However, both parties have addressed other issues. Given the resolution of these issues, it is unnecessary to consider whether they have been adequately pleaded. Sheet A-6 of the drawings contains details for a “typical wall section” and “typical shear wall.” The “typical wall section” clearly depicts exterior walls and specifies, for such walls, 2-inch by 4-inch studs spaced 16 inches on center. Sheet A-4 depicts exterior walls as 3 1/2 inches thick, which is consistent with exterior framing of 2-inch by 4-inch lumber, rather than 2-inch by 6-inch or 2-inch by 8- inch lumber. However, General Note 4.4.1 on Sheet A-1 specifies that the exterior framing shall be 2-inch by 6-inch and 2-inch by 8-inch. The only 2-inch by 4-inch lumber is reserved for interior framing. The drawings are inconsistent as to the specification of exterior framing. The inconsistency is obvious and caused the owner to contact Respondent after delivery of the drawings and confirm that he intended the use of 2-inch by 6-inch or 2-inch by 8-inch exterior framing. However, Petitioner has failed to establish that this internal inconsistency in the drawings constitutes negligence. It is not negligence merely because drawings are flawed, even if the flaw requires a contractor or owner to request clarification from an engineer. The flaw in specifying the exterior framing studs is not negligent for two reasons. First, the obvious inconsistency in the drawings, which caused even the owner to contact Respondent, left little chance that a contractor would fail to notice the conflicting specifications. Noticing the conflict, the contractor would either build to the more conservative specifications, which would be the stronger exterior framing studs, or contact the engineer for clarification. Second, the record amply demonstrates that informed engineers differ as to the materiality of the specification that the exterior framing studs be greater than 2-inch by 4- inch. Absent clear and convincing evidence that the structural integrity of the building would have been affected, in terms of its ability to support design wind loads, the flaw in specifying the exterior framing studs does not rise to negligence. Count Three alleges that Respondent’s drawings are deficient because they fail to specify the sheathing thickness and nailing of the floor and roof diaphragms. Petitioner has failed to prove by clear and convincing evidence that Respondent’s omission of the sheathing thickness and nailing of the floor and roof diaphragms constitutes negligence in the practice of engineering. Again, neither the Standard Building Code nor the rules require the depiction of a diaphragm or a specification of its thickness or nailing patterns. The practice of the Hillsborough County Building Department is to require the depiction of the diaphragm if the drawings deviate from the sheathing orientation or nailing pattern specified in the Standard Building Code. Depicting the first floor framing plan, Sheet A-3 specifies 1/2-inch plywood subflooring. As noted by Respondent’s expert, 1/2-inch plywood subflooring would sag, although not collapse; 3/4-inch plywood subflooring is needed, given the 24-inch spacing of the floor trusses. Again, the owner, evidently concerned about this detail, contacted Respondent after delivery of the drawings, and Respondent told the owner to use 3/4-inch plywood. However, nothing in the Administrative Complaint alleges negligence in the misspecification of the plywood subflooring. Count Three alleges only that the drawings negligently omit specifications concerning the floor and roof diaphragm, which would include the plywood subflooring. Specifying the wrong item is not failing to specify an item. Proof concerning the erroneous specification of 1/2-inch plywood subflooring is therefore outside the scope of the pleadings and irrelevant. Count Four alleges that Respondent’s drawings are deficient because they include gable trusses even though the house was not to be constructed with gable trusses. Petitioner has failed to prove by clear and convincing evidence that the depiction of gable trusses constitutes negligence in the practice of engineering. Respondent explained that he simply provided the truss engineer with an alternative roof design, in case the need for an alternative arose. Respondent’s explanation was implausible. It was also imprudent, as evidenced from pages 12-14 of Petitioner’s proposed recommended order. The inclusion of the gable trusses was a simple, but harmless, mistake on Respondent’s part. Although sloppy, the inclusion of gable trusses in the drawings could not possibly have misled the truss engineer, to whom Respondent had properly delegated the responsibility for designing the roof, into designing the wrong roof for the Sorrentino Residence, nor could it have misled the contractor into building the wrong roof for the Sorrentino Residence.
Recommendation It is RECOMMENDED that the Board of Professional Engineers enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 30th day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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 30th day of March, 2001. COPIES FURNISHED: Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1208 Hays Street Tallahassee, Florida 32301 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre, 1940 North Monroe Street Tallahassee, Florida 32399-0792 Doug Sunshine, Esquire V.P. for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 William H. Hollimon Ausley & McMullen Post Office Box 391 Tallahassee, Florida 32302 Brent Wadsworth Post Office Box 270118 Tampa, Florida 33688 David P. Rankin 3837 Northdale Boulevard Suite 332 Tampa, Florida 33624
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Raymond E. Hirst, Jr., professional engineer, was licensed as such by the State of Florida under license number PE 0017307. Prior to March 22, 1983, the Respondent, for Mech-Mar Engineering Company, Inc., designed a storage bay and mini- warehouse project to be built by Ruth Stein Construction for William M. Kwasniki, to be located on South Babcock Street in Palm Bay, Florida. Petitioner designed the facility and signed the plans for construction on March 22, 1983. A note clearly marked on the sheet index on the upper right hand corner of the first page of the plan set reflects, "The engineer's services do not include supervision of the construction of this project." The plans consist of three sheets of drawings, each of which is sealed and signed by the Respondent. The first sheet reflects the foundation plan. The second shows the electrical riser and firewall detail, and the third reflects the elevations. On or about April 3, 1983, the contractor, Ruth Stein, submitted these plans to the City of Palm Bay building department. The plans were approved for construction by the office of the chief building official, Paul Olsen, and formed the basis for the issuance of the construction permit. Neither the engineer's specifications nor calculations were submitted and filed with the plans. However, calculations were not required by the City of Palm Bay at that time. Two amendments to the plans were filed by the Respondent on May 31, and August 10, 1983. No revised drawings were submitted, however. The drawings that were submitted by Ms. Stein, but drawn by Respondent, were used to insure that the plans conformed to standard building codes, zoning codes, etc., but were not reviewed by the city for compliance with engineering standards and no engineering analysis was done by the city on these or any other plans at that time. The need to do so was apparently recognized later, however, as such analyses are now done on a routine basis. The plans were also to be used by the city's inspection staff to compare work being done by the contractor with the plans to insure that the work conforms to them. During construction, the building being erected according to Respondent's plans, a concrete block structure, collapsed. This collapse occurred sometime prior to May 20, 1983. After the structure collapsed, the city building office again approved the plans drawn by Respondent for reconstruction. The contractor was told to clean up the site and was then allowed to rebuild. Not only the original plans but the amendments referred to above, including that dated August 10, 1983, called for partitions within the building. After rebuilding, the structure was inspected by the city and a certificate of occupancy was issued in August, 1983. No complaints have been filed regarding this construction since that time. After the collapse, an inspection of the collapse site revealed that in some areas on the west part of the structure, cells of the concrete blocks being used to form the walls had not been filled with concrete as was required by the design submitted by Respondent. In the opinion of Mr. Olsen, this defect was a fault not of the Respondent but of the contractor. No determination was made by the city as to: whether the block walls as designed by Respondent met Standard Building Code (SBC) requirements; whether the walls were supported laterally as required; whether anchorage of the roof trusses to the walls was accomplished; whether Respondent properly, or at all, designed a roof diaphragm for this project; whether the walls were adequate to meet the wind load requirements (the SBC suggests that maximum wind velocity standard is 90 mph.); whether the lentils were adequate; and whether the truss anchorage limits were satisfactory. (According to Mr. Olsen, this decision is left up to the engineer who designs the structure.) The city found, however, that a part of the reason for the collapse of this structure was that the trusses for the roof were set too soon, were not adequately braced, contained questionable materials, and wore questionably fabricated. Though the city was not critical in its analysis of Respondent's performance, the experts retained by Petitioner to evaluate his drawings were. Mr. James O. Power, who has been a registered structural engineer since 1947 did not examine the building site but is aware of the project in question. He reviewed the drawings prepared by Respondent, photos taken of the site, the investigative report, letters and correspondence from Respondent with calculations contained therein, and the Respondent's amendments to the original drawings. On the basis of this evidence, he formed an opinion as to Respondent's performance as an engineer on this project and prepared several letters on the subject dated July 6 and October 21, 1983, and January 30 and September 7, 1984, all of which constitute his opinion as to Respondent's performance. In substance he concluded that Respondent's engineering performance on this project was unsatisfactory showing basic negligence and lack of due care as well as a lack of understanding of the basic engineering requirements for the job. In his opinion, overall, the drawings lack sufficient detail. For example, they, (a) show no interior partitions (partitions were defined in an amendment to the drawing filed after the collapse); (b) show that while the southern wall has few openings, the north wall has many, (this is significant in that because of the lack of partitions, the walls must resist the winds playing upon them as vertical cantilevers); (c) show that the number 5 vertical bars in the fill cells are 12 feet apart, (to serve as reinforced masonry, they should be 4 but no more than 8 feet apart depending on the circumstances); (d) reflect a ceiling height of 14 feet whereas later drawings show a difference in elevation; (e) show that the tie beam is to be constituted of inverted masonry U-beam 16 inches deep filled with concrete and reinforcing steel without providing for any obvious way to insert the concrete within the beam; (f) failed to show with detail the strap makeup or method of connection for the hurricane straps to be used to hold down the roof trusses to the walls, (the drawings show that the strap is to loop over the truss and if the straps do not do so, the connection is weak); (g) reflect that the door height at the openings on the north and south side doors are different than the tie beam height but there is no showing of how the weight of the roof is to be distributed over the door head only 8 inches below the tie-beam (this could contribute to the collapse of the building); and (h) failed to show drawings of trusses by the Respondent. In this regard, the truss company's drawings and specifications are insufficient. Since the Respondent's drawings do not define with particularity how the trusses are to be constructed, the truss fabricator must make assumptions as to the stress and load to be applied. With regard to the pre-engineered and pre-manufactured roof trusses, Mr. Power is of the opinion that the designer, Respondent, should have: (1) stated his criteria for the design of the truss (Respondent did not do this); (2) stated the qualifications of the designer (Respondent did not do this); (3) submitted clear instructions regarding his design (Respondent's are unclear and unsatisfactory). Mr. Power also indicates that in his experience, bracing for the trusses is installed at the building site and that only the basic truss is constructed at the truss company's plant. Respondent, on the other hand, contends that the practice in Brevard County is for the building designer, as here, to give the basic specifications needed for the truss, and thereafter, the truss designer, working for the truss company, designs and builds the complete truss for delivery to the site. If Mr. Power's position is to be believed, personal supervision of the designer would be required at the site once the basic truss was delivered. Here, however, Mr. Power operates out of Miami and Petitioner has failed to show that he is familiar with the trade practice in the area involved in this dispute. Respondent's position is somewhat supported by the fact that his plans contain a disclaimer of supervision and no issue was made that this is a forbidden or unaccepted practice. Consequently, it cannot be said that Respondent's design of the trusses in this case was faulty. Mr. Power also identified several "design deficiencies" in Respondent's work. Among these were that there was no requirement for the use of reinforced masonry which is different from concrete and that Respondent's drawings provided no details or standards for the mortar or grout, the substance used to fill the holes in concrete blocks which should have a minimum slump of 8 inches. (If one tried to fill these cells from the top of a 14 foot wall, it is most likely that the cell, the hole within the blocks, would not be filled.) Further, the formulae used by Respondent in his calculations are for solid materials in the walls -- not for cinder block which was the material called for here. On the basis of the above discrepancies, it appeared to Mr. Power that Respondent did not understand the difference between the requirements for construction with concrete block and those for construction with reinforced masonry. In addition, according to Mr. Power, the reinforcing walls inserted in the design by the Respondent after the collapse of the building are of materials not permitted by the SBC. Also the SBC requires that the ratio of length to width of roof diaphragm should be no more than 4. The purpose of this is to provide support to the top of the wall so as to resist loads placed upon it by the force of wind. Here, Respondent's design has not adequately provided this reinforcement, in Mr. Power's judgment, and the design does not meet the SBC requirement. The SBC also requires designs of buildings to be constructed in the Palm Bay area to be able to withstand 90 mph winds. Mr. Power's calculations based on Respondent's plans and drawings show it is questionable that a building built pursuant to Respondent's plans would sustain 90 mph winds. The fact that the chances are only one in fifty that in any given year winds of this speed would be reached is immaterial. As to the filling of the holes (cells) in the concrete block, Mr. Power contends that it is a good practice to show in the drawing a breakout in the block at the bottom of the wall so that the builder can see that the concrete has in fact gone all the way down to the bottom as it should. Here, however, the building code does not require this to be done. Again, considering the Respondent's use of cement instead of grout to fill the cells, the Respondent followed county practice and the SBC does not specifically require the use of grout. Nonetheless, Mr. Power is of the opinion that even though Respondent's drawings indicated that he would not inspect at the site, it was unreasonable for Respondent to expect the cells to be filled since it is well known that many contractors do not inspect to insure that the cells are filled as called for. Mr. Power is also of the opinion that the lintels as described in one of the amendments to the basic drawings, though permissible for use, are inadequate to handle the indicated roof load and the drawings prepared by Respondent did not show the lintel capacity. Mr. Power contends that the SBC requires drawings to show sufficient detail to indicate the intent of the designer to allow the contractor using the drawings to conform to code standards. Admittedly, this is subjective criteria, not an objective one, as to what constitutes sufficient detail. The amendments added to the original designs helped somewhat to correct the deficiencies, but do not make them adequate. Taken as a whole, the drawings are not adequate, in the opinion of Mr. Power, to comply with the SBC. They are not adequate to pass on the designer's intent to the contractor and they are not adequate to show the designer's understanding of design elements. These errors and deficiencies described above are, in the opinion of Mr. Power, significant and not minor. Based on his analysis of the overall drawings and situation, he concluded that Respondent has not demonstrated his capability to handle this particular task which, in the opinion of Mr. power, is relatively simple. Respondent's drawings and the other documents pertinent to the project in issue here including calculations, correspondence, photos, and the investigative report, were also reviewed by Ernest C. Driver, a Florida licensed consultant engineer operating in Cairo, Georgia. Mr. Driver also reviewed Mr. Power's reports and is in complete agreement with his conclusions. He did some calculations on his own and on the basis of them, formed an opinion of Respondent's performance as an engineer on this project. He found that the reinforcing of the cinder block cells on the walls were too widely spaced at 12 foot centers instead of 4 to 8 foot centers. In addition, he did not agree with the engineering conclusions drawn by the Respondent. The calculations performed by Respondent were, in his opinion, improper and as a result, the design is over-stressed by approximately 215 percent. This came about, apparently, because Respondent designed a wall as though there were no doors in it. In addition, the way the tie beam is designed, it is impossible to get the reinforcing concrete into the "U." Further, the hurricane straps required to affix the roof trusses to the tie beam cannot be attached to the beam itself. Also, the design called for concrete block to be installed above the doors. This procedure placed as much as four times the load the lintel should carry. Mr. Driver also found that the diaphragm used by Respondent was of gypsum board which, in his opinion, is not a proper material for diaphragms. Also, according to Mr. Driver's interpretation of Respondent's plan, there is no way that the wind shear force applied to the diaphragm can be transmitted to the side wall and thence down to the earth. This is a definite deficiency and Respondent's drawings and notes are not complete enough to allow a clear determination of what is required as to materials to be used and how the work should be accomplished. Other deficiencies are seen in that the drawings show a 230 foot long building without an expansion joint. In Mr. Driver's opinion, this is far too long for construction without such a joint. In addition, the 26 foot high end wall is not addressed in the design which has no indication of how the roof is to be attached to it. Mr. Driver concurs with Mr. Power's opinion regarding the insufficiency of the plans and specifications offered by Respondent for the roof trusses in that there is no framing plan nor are there specifications identified for the trusses. Shop drawings should have been provided instead of only a cut sheet. While this witness does not know what the current Brevard County practice regarding the design and construction of trusses is, he is convinced that it is as Respondent says it is, to wit: that they are completely fabricated at the shop and delivered completed for installation to the job site, this is a poor practice. Connected to the issue of roof trusses is that regarding the metal hurricane straps which Respondent indicated his plans called for. These metal straps, which can easily be bent by hand are, in the opinion of Mr. Driver, a poor method of affixing the trusses to the tie beam. There are too many things that can go wrong such as hinging, the lack of a firm seating for the strap in the concrete, the bending of the metal, and the pulling of the affixing nails through the holes in the strap thereby resulting in no grip. In addition to his dissatisfaction with the use of concrete to fill the cells in the cinder blocks, Mr. Driver also feels that the use of concrete to fill a continuous 14 foot cell is improper. In his opinion, the drawings should call for a solid block every 4 feet and for weep holes through which compaction can be noted periodically throughout that distance. All of this should be in the engineer's notes. The notes by Respondent do not identify these areas. Even though Respondent's notes called for the 14 feet to be filled, his plans failed to provide methods to insure that complete filling was accomplished. Examination of the pictures of the wall after the collapse reveals that complete filling was not accomplished and this failure on the part of Respondent to provide a reasonably foolproof method of insuring complete compaction cannot be excused and responsibility shifted to the contractor by the mere statement by Respondent on the plans that he would not inspect. Engineering practice is made up of judgment as well as the specific formulae which can be obtained from engineering textbooks. There are assumptions which may be made -- some good and some bad. In the opinion of Mr. Driver, the defects described above indicate that Respondent's assumptions were bad. As a result, his judgment was bad. He feels that, in light of all the evidence, Respondent was negligent, failed to use due care, failed to conform to accepted engineering principles, failed to accomplish drawings sufficiently detailed to instruct the contractor as to exactly what needed to he done, and failed to provide drawings which, if followed exactly as presented, would by themselves, enable a builder to construct a safe structure. Here, based on the drawings prepared and submitted by Respondent, a builder would have to demonstrate a high and exceptional degree of expertise in order to fill in the omitted details required to make the building safe. Acceptable drawing standards are not defined with specificity in the SBC. Much is subjective rather than objective. For example, nothing in the SBC prohibits the use of gypsum board as a horizontal diaphragm, but, in the opinion of Mr. Driver, it is not common practice to use it for such. This goes to the question of judgment. In any event, the code may be erroneous in some particulars and not all answers are contained in it. It is for this reason that the law requires the use of a licensed engineer whose judgment fills in the gaps left by the code. Here all the defects identified in Respondent's drawings are within the province of an engineer. These are the items an engineer is needed for to accomplish. Here, in the opinion of Mr. Driver, there are too many defects and Respondent's work does not conform to any of the standards used in the engineering community as to schooling, information gained from working with other engineers, or the witness's personal experience. In rebuttal to the above, Respondent presented no experts of his own, but testified as to his disagreement with the analyses of Petitioner's experts. The testimony by Mr. Power and Mr. Driver is found to be accurate and descriptive of the defects in Respondent's performance. There are a few exceptions such as where local Brevard County practice differs from the experience of these experts, however, taken as a whole, the evidence clearly indicates Respondent's shortcomings for the most part. The testimony of the experts has established a series of defects in Respondent's performance which he has failed to satisfactorily rebut.
Recommendation Based on the foregoing Findings Of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, RAYMOND HIRST, be placed on probation for one year, that he be reprimanded, and that he pay an administrative fine of $500.00. RECOMMENDED this 19th day of February, 1985 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of February, 1985. COPIES FURNISHED: Carol L. Gregg, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Raymond Hirst 379 Franklyn Avenue Indiatlantic, Florida 32903 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Jr. Board of professional Engineers Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue This case arises on an amended administrative complaint filed by the Petitioner which seeks to have Respondent's contractor licenses disciplined for alleged violations of Chapter 489, Florida Statutes, incident to the construction of a residence near Melrose, Florida. The case originally was scheduled to be heard on July 10, 1987, but after the hearing was convened, Respondent's counsel sought a continuance based on Respondent's health problems which were supported by a doctor's statement. The motion was granted and the hearing was continued until August 25, 1987. At the hearing, Petitioner presented the testimony of Evans Starke, Marion Uhl, and Robert H. Adams. Petitioner submitted eight exhibits in evidence, including the depositions of Respondent and Matthew M. Gordon. Respondent testified in his own behalf and submitted three exhibits in evidence. However, Respondent's exhibit three, which was a house plan, was retained by Respondent and a copy thereof was to be filed within 10 days after the hearing. Additionally, Respondent was provided a period of 10 days after the hearing to submit a deposition of James A. Taylor However, the deposition was not filed within the required period nor was Respondent's exhibit three. Respondent's post-hearing motion to extend the time for filing the deposition was denied. The parties were provided a period of ten days from the filing of the hearing transcript in which to file proposed recommended orders. Neither party made a timely submission. However, Respondent's post-hearing motion to extend the time period was granted. The proposed Findings of Facts submitted by both parties were considered and substantially incorporated herein.
Findings Of Fact Respondent Joseph Rentz is licensed as a registered building contractor, roofing contractor, and mechanical contractor, and was so licensed at all times pertinent to this proceeding. In addition, he is the qualifying contractor for Alachua Association Builders. (Petitioner's exhibits 2-3) In March 1985, Evans Starke of Miami, Florida entered into an oral agreement with Respondent for the construction of a residence near Melrose, Florida. Respondent agreed to build the house on a cost-plus basis and estimated that the cost would be approximately $27.00 per square foot or less. Respondent told Starke that he would be satisfied with 10 percent of the cost of construction for his fee. The arrangement was that Starke would Periodically provide money to his aunt, Lenora Peterson, and that Respondent could make draws from that source as required to progress with construction. Starke also asked Respondent to open a checking account from which he would pay the bills for materials and labor. (Testimony of Starke) The original construction plans provided to the Respondent by Starke were for a house of approximately 4,000 square feet, but since Starke wished to expand the size of the house considerably, he informed Respondent of the various modifications which resulted in Respondent obtaining revised plans from a draftsman for a house of approximately 10,000 square feet. (Testimony of Starke, Respondent) Respondent obtained a building permit in his name and commenced construction. As work progressed, Respondent would inform Lenora Peterson of the need for progress payments for materials and labor on a weekly basis. She would then provide the necessary money in cash to Respondent and obtain a signed receipt from him. During the period March through September, 1985, Respondent signed receipts amounting to $121,360. Respondent had several checking accounts in the name of "J. & L. Properties", into which some of the draws were deposited and checks drawn thereupon to pay materialmen, subcontractors, and workmen. In other instances, Respondent paid cash to workmen, but obtained no receipts therefor. Starke visited the project site usually on a biweekly basis during the initial months of construction. On several occasions, he met Respondent midway between Gainesville and Miami to deliver cash for construction costs. Some of this money given to Respondent was not evidenced by a receipt of Respondent. Starke testified that on one occasion, he gave Respondent $3,000 to pay for the installation of a well, but Respondent had only given the well-digger $1,000, and Starke later found that he still owed the balance, plus a 25 percent rise in cost. Starke also claimed that he spent $1,000 to put a drain under the driveway to the basement because Respondent had forgotten to do so. He further stated that he had given Respondent $5,000 to purchase shingles for the house, but Respondent bought only enough to cover the garage. Consequently, Starke was obliged to expend further sums to obtain the remaining shingles. (Testimony of Starke, Respondent, exhibits to deposition of Rentz (Petitioner's Exhibit 2), (Petitioner's composite Exhibit 6) During Starke's periodic visits to the job site, he requested that Respondent show him the bills and receipts for the purchase of construction material and labor payments, but Respondent evaded such request by saying that his wife was handling the business matters, and that she was ill and unable to show him the records. Eventually, Starke became more concerned because of the discrepancies in the expenditures of funds, and therefore made a special trip in October 1985 to meet with Respondent and go over the project accounts. At that meeting, Respondent's wife provided Starke with a number of canceled checks on the J. & L. Properties account, which failed to identify any specific payments for the Starke project, but which consisted mostly of apparent payments of Respondent's personal bills. (Testimony of Starke, Respondent, Petitioner's Exhibits 2,6) Subsequent to the October meeting, Respondent asked Starke for the sum of $1,500 for his own services, which was paid. This was the last payment made by Starke to Respondent and the last contact that he had with him. Respondent performed no further work and left the project about the third week of November 1985. Although Starke attempted to get in touch with him during the intervening period, he was unsuccessful in doing so. (Testimony of Starke, Respondent, Petitioner's Exhibit 2) On January 31, 1986, Starke obtained a new building permit to complete his residence, and hired Marion C. Uhl, a certified residential contractor, at an hourly rate to supervise the remaining work. Uhl found at that time that the house consisted of a shell with some interior partitions erected and doors in place, but without any electrical or plumbing work, except for a garage bathroom. It took him approximately ninety days to correct previous construction errors before it was ready for subcontractor work. Specifically, he found that the partition walls were out of plumb and that some of the doors were not framed properly. It was necessary for him to tear them out and redo the work. He found no backing (dead wood) for the ceilings and walls which should have been in place before the roof was sheathed. He had to take out all the windows which were out of plumb and reinstall them. It was necessary to frame out the gables of the house in order that water wouldn't accumulate in vacant areas. Water had accumulated in the garage basement due to a failure to install proper drain fields under the house. Additionally, it was discovered that there was no concrete in the tie beams which supported the floor above and could cause it to sag eventually. In Uhl's opinion, which is accepted, these problems would not have occurred if the job had been properly supervised. (Testimony of Starke, Uhl) Robert H. Adams, an expert in the residential contracting field, who owns a building inspection firm, inspected the Starke premises on May 18, 1987 at the request of Petitioner. Based upon his examination of the house, he found the following deficiencies, which had existed at the time Respondent left the project: In some areas, the brick veneer exterior walls were not properly supported on the footing in that the brick veneer protruded beyond the outside edge of the footing. Also the footing was at grade rather than being below grade. Failure to utilize solid concrete walls or pouring of concrete into concrete blocks which formed walls supporting a steel I-beam. This deviation from the plans could result in failure of the foundation walls. Improper splicing of girders under the house. Girders were butt-spliced rather than spliced with either a shep or a diagonal cut. The joints were not over a supporting pier. Settling from the floor above could cause the house floor to sag. The exterior brick roll-out window sills were level instead of being at a slight angle to permit water to flow away from the bottom of windows, thus causing the potential of water intrusion into the house. Front entry brick steps were not centered with the door opening by approximately 18 inches. An exterior garden hose bib Produced hot water instead of cold at left front of the garage. This was caused by "mis- plumbing" the cold and hot water lines. Block wall of the garage was out of plumb approximately 7/8 of an inch over a 4 foot vertical distance. One of the garage roll doors had only 9 foot, 3 inch clearance instead of 10 feet as called for by the plans. Uneven coursing of brick veneer at the ceiling of the right rear porch. Waferboard was used on roof decking rather than plywood as called for by the plans. Waferboard is not as strong as plywood. Water intrusion into the garage- basement. In Adams' opinion, which is accepted, the deficiencies noted by his inspection reflected very poor workmanship and gross negligence, in that the fundamentals of construction as practiced in the construction trade were not observed by Respondent in major areas. They were gross deviations from good building practices and a competent contractor properly supervising the job would have been aware of the deviations from good contracting practice. In addition, it is incumbent upon a contractor to keep accurate and complete financial records for a particular project. (Testimony of Adams, Petitioner's Exhibit 7) In January 1986, Starke employed Universal Engineering Testing Company, a structural engineering firm, to ascertain the cause of groundwater leaking into the garage-basement of his house and to provide remedial recommendations. Professional engineers of the firm inspected the premises and observed that groundwater was leaking at the wall-floor joint around most of the garage. They found that although a drainage system had been installed during construction, soil and groundwater conditions at the site limited the effectiveness of the existing system, due to hydrostatic pressure build up under the garage floor. It was determined that, unless the pressure was dissipated with under-slab drainage, the slab would heave, crack, and leak at the wall-slab joint They found that the situation could only be remedied by installing an under drain grid after removal of the existing slab. In their professional opinion, which is accepted, the failure of the existing slab had been caused by excessive water pressure build up and improper construction techniques. (Testimony of Gordon, Petitioner's Exhibit 1) At the hearing, Respondent admitted that he had never constructed a house of the scope and size of the Starke residence, but that he had attempted to build what Starke desired in accordance with the plans and numerous changes required by Starke during the course of construction. Such changes, in his view, caused the difficulty in centering the brick work at the front of the house since this work was called for after the front door had already been installed. He claimed that he had waterproofed the garage-basement and put in French drains, but that water couldn't go out, and it was necessary to install a tank under the driveway to pump the water from the basement. Respondent also conceded that he did not maintain continuing records during the course of construction as to the financial aspects of the project, but intended to recapitulate all costs and payments when construction was completed. He acknowledged that receipts from the project were commingled with other funds in his bank accounts and he was unable to show the disposition of proceeds from the project. As to leaving the job, Respondent said that he left because he was threatened by Starke and also because of ill health caused by the stressful situation which came from continuing complaints by Starke concerning the workmanship, and also by the numerous changes to the construction plans. Although Respondent claimed that he notified Starke by letter of January 14, 1986, that he intended to remove his permit no later than January 27, 1986, because it appeared that Starke had decided to take charge of completing the construction, Starke denied receiving such a letter and there is no credible evidence that it was delivered. (Testimony of Respondent, Petitioner's Exhibit 2, Respondent's Exhibit 1) On two prior occasions in 1985 and 1986, Respondent was disciplined by the Construction Industry Licensing Board pursuant to settlement stipulations of administrative complaints filed by Petitioner against Respondent. In those stipulations, Respondent admitted violations of Chapter 489, Florida Statutes, as alleged in the complaints, and administrative fines of $250 and $400 were imposed. (Petitioner's Exhibits 4-5)
The Issue Whether Respondent failed to comply with specified provisions of section 471.033(1)(g), Florida Statutes, and Florida Administrative Code Rules 61G15-30.001(4), 61G15- 30.002(5), and 61G15-30.003(1), as alleged in the Administrative Complaint and, if so, the nature of the sanctions to be imposed.
Findings Of Fact Petitioner, the Florida Board of Professional Engineers, regulates the practice of engineering pursuant to chapters 455 and 471, Florida Statutes. Petitioner is a board within the Department of Business and Professional Regulation (Department), created pursuant to section 20.165, Florida Statutes. The Florida Engineers Management Corporation (FEMC) is charged with providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers pursuant to subsection 471.038(4), Florida Statutes. At all times material to the allegations in the Administrative Complaint, Respondent was a licensed professional engineer, holding License No. PE 31542. Engineering involves analysis and design. Analysis is the process of applying load to a structure and using engineering principles to determine the resulting forces or stresses in the elements of that structure. In design, an engineer applies the forces or stresses to the materials and elements used in the structure to determine whether the material and connections are capable of withstanding the load. The intent of an engineer is determined by his or her drawings. It is those drawings that establish what the contractor has to build in the field. Two engineers can review a set of engineering drawings, make different assumptions, arrive at different conclusions, and have both conclusions meet engineering standards. It is well established that different engineers make different assumptions about connectivity of the members of a structure that materially affect how the structure will react, and that engineers do not design structures in the same way. This case involves an Administrative Complaint filed by Petitioner alleging that Respondent prepared and certified plans for two aluminum structures that failed to meet the standards imposed by the FBC, thus constituting negligence in the practice of engineering. In general, engineering principles are not dependant on the materials used to build a structure. Although aluminum members used in construction are typically of a thinner gauge than, for example, steel members, the structural engineering principles and designs are not unique. In 2009, Petitioner and Respondent settled a disciplinary action involving Respondent by entry of a settlement stipulation. Pursuant to the stipulation, which was incorporated in a Final Order, Respondent agreed to periodically submit a detailed list of all completed projects that were signed, sealed, and dated by Respondent. From that list, two projects were to be selected for review by the FEMC. The Final Order was not appealed. Respondent submitted the list of projects from which the FEMC selected two for further review. Those two projects form the basis for the Administrative Complaint. Respondent was the engineer of record, as that term is used in Florida Administrative Code Rule 61G15-31, and signed and sealed the last iteration of the structural engineering plans for the two projects. Those projects are: The Shank Residence Project, an aluminum-framed, composite roof patio project; and The Emilion Court Residence Project, an aluminum- framed screen pool enclosure. The plans were filed with the building department for St. Johns County, Florida, as part of the application for a building permit. The plans were reviewed by a county plans examiner, and a building permit was issued. The issuance of the building permit demonstrates that St. Johns County found that the proposed project did not violate the FBC. The Certificate of Completion for the Shank Residence project was issued on January 14, 2010. The Certificate of Completion for the Emilion Court Residence project was issued on March 30, 2010. The purpose of Petitioner’s review was to review what Respondent did, with the review of documents similar to that conducted if Respondent were seeking a permit. The purpose was not to find an alternative analysis. The files were originally assigned to Michael E. Driscoll, a professional engineer assigned by FEMC to review the plans and documents submitted for the two projects. On August 13, 2010, Mr. Driscoll, through his firm, Driscoll Engineering, issued a Project Review Report for the two projects. On January 27, 2011, Mr. Driscoll issued a Supplemental Structural Report. Respondent filed a response and objections to Mr. Driscoll’s report. In order to avoid Respondent’s objections from becoming an issue, the FEMC reassigned the review to Joseph Berryman, a professional engineer who is frequently retained by the FEMC for such purposes. Mr. Berryman reviewed and responded to many of Mr. Driscoll’s conclusions, but provided his own independent analysis as to whether the plans for the two projects complied with sound engineering principles. Mr. Berryman prepared a report, dated June 7, 2011, in which he concluded that Respondent “failed to utilize due care in performing in an engineering capacity and has failed to have due regard for acceptable standards of engineering principles” with respect to the plans for the Shank Residence and Emilion Court Residence, and as a result was negligent within the meaning of section 471.033(1)(g) and rule 61G15-19.001(4). Neither Mr. Driscoll nor Mr. Berryman performed a failure analysis on the Shank or Emilion structures. Mr. Berryman testified that, in his opinion, whether an engineer’s signed and sealed plans have been approved by a local building official does not affect an analysis of whether those plans meet the standards for the practice of engineering established by the Board of Professional Engineers. The FEMC presented its findings to a Probable Cause Panel convened by Petitioner to hear cases involving alleged violations of chapter 471 and the rules promulgated thereunder. The panel found probable cause to proceed against Respondent. On July 25, 2011, Petitioner issued the Administrative Complaint that forms the basis for this case. The Administrative Complaint alleges that Respondent's structural engineering plans for each project were deficient and failed to comply with acceptable standards of engineering practice. Shank Residence Project The Administrative Complaint alleged five separate counts related to alleged deficiencies in the Shank Residence Project. The deficiencies were limited to whether required information was shown on the plans sufficient to allow a contractor to construct the project, and not to whether elements of the project were overstressed or otherwise failed to meet safety standards. The Counts were identified as Counts 6.A. through 6.E. Count 6.A. Count 6.A. alleged that Respondent failed to indicate the roof design live load, the enclosure classification, and internal pressure coefficient. Both Mr. Berryman and Mr. Martin agreed that the FBC requires that roof design live load, the enclosure classification, and internal pressure coefficient be shown on building plans. Both Mr. Berryman and Mr. Martin agreed that the information was not on the design document for the Shank project. Thus, Petitioner proved, by clear and convincing evidence, the elements of Count 6.A. Count 6.B. Count 6.B. alleged that Respondent failed to indicate the column spacing at the fourth wall, the overall dimension of the canopy at the fourth wall, the column spacing at the intermediate roof beam, and the dimensions of the knee brace elements. As to the column spacing at the fourth wall and the intermediate roof beam, Mr. Berryman opined that the drawing did not contain sufficient information regarding those elements of the plans. Mr. Martin indicated that column spacing was on the plan front view, but because the columns were in alignment, the front measurement was sufficient to convey the information as to column spacing at the fourth wall to the local building officials and the contractor. However, Mr. Martin admitted that the drawings contained no information regarding the spacing of one non-aligned beam at the fourth wall. Although the full side span length from the fourth wall to the front of the patio structure is provided, the spacing of the intermediate beam is not.1/ Thus, Petitioner proved, by clear and convincing evidence, the elements of Count 6.B. regarding Respondent’s failure to indicate the non-aligned column spacing at the fourth wall and the spacing of the intermediate roof beam. As to the dimensions of the canopy at the fourth wall, while the dimension of the canopy is not written in at the fourth wall overhead view, it is depicted in the front view. There was no evidence that a front view measurement is contrary to FBC requirements. Mr. Martin testified that such a measurement provided sufficient information to the local building officials and the contractor, and was therefore acceptable. Thus, Petitioner failed to prove, by clear and convincing evidence, the elements of Count 6.B. regarding Respondent’s failure to indicate the dimensions of the canopy at the fourth wall. The posts and beams on the Shank project were buttressed with knee braces. The effect of the knee braces is to shorten the span length between posts, which reduces the stresses on the beams. The locations of the braces were depicted on the drawing. The detail for the 2x3 knee braces was included in a detail sheet that accompanied the drawings. Petitioner discounted the detail sheet due to a statement at the bottom of the sheet that “[c]ertification extends only for the span tables specified for the structural shapes listed.” Petitioner asserted that language had the effect of nullifying any reliance on the information contained in the detail sheet, a position that the undersigned finds to be unreasonably and unnecessarily restrictive. In addition, such a construction would also nullify the remaining language along the border of the detail sheet that “[d]rawing valid with raised impression engineer seal.” The drawings provided by Respondent, read in conjunction with the details, establish the dimensions of the knee brace elements on the drawings. Thus, Petitioner failed to prove, by clear and convincing evidence, the elements of Count 6.B. regarding Respondent’s failure to indicate the dimensions of the knee brace elements. Count 6.C. Count 6.C. alleged that Respondent failed to detail the anchorage of the patio cover posts at the fourth wall and other locations where the posts do not align with an existing 4x4 railing post, and therefore neglected to provide a complete load path capable of transferring loads from their point of origin to the load resisting elements. Mr. Berryman noted that the detail provided regarding the connection of the posts to an existing rail would not apply to the fourth wall since there is no rail at that location. The drawings confirm Mr. Berryman’s testimony as to the existence of a railing at the fourth wall. Mr. Martin testified that he was “interpreting that to be a connection to the existing wood rail structure that’s back here at the fourth wall.” Mr. Martin’s testimony on that point is not accepted, since the detail clearly depicts the post and rail structure at the front of the existing deck, and not at the point at which it connects to the building. Petitioner proved, by clear and convincing evidence, the elements of Count 6.C. regarding Respondent’s failure to detail the anchorage of the patio cover posts at the fourth wall to provide a complete load path capable of transferring loads from that point to the building. Mr. Berryman also noted locations where the supporting column did not align with an existing deck post, thereby providing no direct pathway of the load of the structure to the foundation element. His testimony finds support in the drawing. Mr. Martin agreed that the FBC requires a direct load path from the point of application of the load to the ground. He noted that the detail provided a load path to the posts, “provided they align.” Where the column and post did not align, one cannot ascertain the attachment point for the column. The drawings, including the attached detail sheets, are insufficient to demonstrate that the columns and the deck posts align to provide the load-to-ground pathway and, in fact, demonstrate the opposite. Petitioner proved, by clear and convincing evidence, the elements of Count 6.C. regarding Respondent’s failure to provide a complete load path capable of transferring load to the foundation elements of the structure. Count 6.D. Count 6.D. alleged that Respondent failed to set forth the material thickness/section and alloy for the 3x3 fluted posts and beams. Both Mr. Berryman and Mr. Martin agreed that the FBC requires the material thickness, section, and alloy for structural members to be set forth in the construction documents. Both Mr. Berryman and Mr. Martin agreed that the drawings gave the general dimensions of the posts and beams, but provided no information as to the gauge, thickness, or alloy of those structural members. Thus, Petitioner proved, by clear and convincing evidence, the elements of Count 6.D. regarding Respondent’s failure to set forth the material thickness and alloy for the 3x3 fluted posts and beams. Count 6.E. Count 6.E. alleged that Respondent failed to describe and define required roof panel components. Mr. Berryman indicated that the identification of “generic” roof panels, without information as to the thickness of the aluminum cladding, did not provide sufficient information that the panels met the FBC strength requirements. Mr. Martin agreed that Respondent did not identify a particular product, that the drawings provided no other information as to the thickness of the aluminum sheets that covered the foam core, and that the information provided regarding the roof panels was therefore “incomplete.” In the absence of a specific product, an engineer “should specify what the thickness of that skin is.” No such specificity as to the thickness of the aluminum skin, or of the brand name of the product used was provided with the plans for the Shank project. Thus, Petitioner proved, by clear and convincing evidence, the elements of Count 6.E. regarding Respondent’s failure to describe and define required roof panel components. In general, Mr. Martin’s description of Respondent’s plans for the Shank project as “sloppy” understated the lack of information provided. A covered patio structure may not rank among the most complex or difficult structures for an engineer, but the simplicity of the project does not excuse a lack of care and precision that is required to ensure that projects meet applicable standards. In the case of the Shank Residence project, Respondent failed to exercise that requisite degree of care and precision. Emilion Court Residence Project The Administrative Complaint alleged 11 separate counts related to alleged deficiencies in the Emilion Court Project. The Counts were identified as Counts 7.A. through 7.K. Count 7.A. Count 7.A. alleged that Respondent failed to adequately dimension his permit drawings. Mr. Berryman testified that the deficiency that formed the basis for Count 7.A. was related to a failure to establish the “overhang” of the existing structure, inasmuch as the aluminum pool enclosure was to be attached to that overhang. The drawings submitted indicate that the structure was to be attached to the host structure at the “super gutter.” The super gutter is depicted on the structure specific plans, and the attachment details are provided on that section of the detail sheet entitled “Typical Super Gutter Attachment Schematic Plan and Detail.” Mr. Martin indicated that he was able to determine the dimensions of the structure with the exception of a 2x2-inch “girt 1” which was akin to a chair rail around the enclosure. However, the location of “girt 1” was not identified as a basis for the allegations in Count 7.A. The drawings provided by Respondent, read in conjunction with the details, establish that Respondent adequately dimensioned his drawings. Thus, Petitioner failed to prove, by clear and convincing evidence, the elements of Count 7.A. that Respondent failed to adequately dimension his permit drawings. Count 7.B. Count 7.B. alleged that Respondent failed to show the size, section, and location of the framing elements and to define and detail the connections of the transom wall. Mr. Martin testified that that he had no difficulty in determining the dimensions of any of the columns or beams that made up the pool enclosure. He had one question regarding the dimension of an eave gutter at the point at which the structure would attach to the host, but it was a question of a few inches difference. Mr. Berryman’s testimony was limited to the lack of detail regarding the transom wall, not to other framing elements for the pool enclosure. Thus, Petitioner failed to prove, by clear and convincing evidence, the elements of Count 7.B. that Respondent failed to show the size, section, and location of the framing elements. Occasionally, a structure like a pool enclosure is higher than the eave of the host structure. A transom wall is a short wall that extends from the eave of the host structure to the framing members to support the spans from the screen pool enclosure. The evidence in this case demonstrates that Respondent did not include a transom wall in his design. Petitioner’s expert assumed the existence of a transom wall because the pool enclosure extended to a height greater than that of the connection to the house. The side view of the structure shows a vertical element extending up from the eave of the house at the nine-foot elevation, but provides no direct information of any structure associated with that vertical element. Respondent argued that the transom wall was, in essence, a structure that was made up by Mr. Driscoll, and that since it did not appear as part of Respondent’s drawings, it could not form the basis for a violation. Mr. Martin stated that the drawings included no transom wall, whereupon he assumed that the vertical line on the “side view” drawing depicted a sloping gabled roof or some other unspecified feature of the host structure that was not clearly depicted. Mr. Martin further testified that the drawings did not provide the details for attaching that portion of the structure to the host structure, regardless of whether it was being attached to a gabled roof or to a transom wall. Contrary to Respondent’s assertion that there was no transom wall was his reply to the Project Review Report prepared by Driscoll Engineering, Inc. In his report, Mr. Driscoll noted the plans prepared by Respondent: Do not establish or define the height of the connection between the screen enclosure roof and the host roof perimeter (eave). A note on the Plan View (Exhibit B-1) suggests that “2X4 SMB Vert.” are present along one fascia segment, but their height is not shown, nor does Sheet 2 (B-3) depict an elevation of this assumed transom wall.” (emphasis added). In his response, Respondent, through his authorized agent, did not deny the existence of a transom wall, and made no suggestion that the structure tied into the existing host structure, but rather stated that “the transom wall is not shown; however [Respondent] assisted in the field with the installation of the transom wall.” Thus, by virtue of Respondent’s admission, the evidence is clear and convincing that a transom wall was part of the required design of the pool enclosure as constructed. During the course of the hearing, a suggestion was made that Respondent went back to the project site, after-the- fact, and constructed a completely unnecessary transom wall “in good faith to try to participate in this process.” That explanation is neither supported by the record, nor is it a reasonable or logical explanation for a transom wall having been constructed and attached to the host structure. Regardless of whether the vertical line depicted the host structure or a transom wall, the drawings failed to define and detail the connections of the structure to the host structure. Thus, Petitioner proved, by clear and convincing evidence, the elements of Count 7.B. that Respondent failed to detail the connections of the transom wall, or other such framing element necessary to connect the pool enclosure to the Emilion Court residence. Count 7.C. Count 7.C. alleged that Respondent failed to show the section and therefore to define and detail the “2x3 Special” eave rail. A “special” structural component is one that does not have four 90-degree corners. Rather, one or more of the corners may be something other than 90 degrees. Both Mr. Berryman and Mr. Martin agreed that the section of the special eave rail was not shown in the plans. Mr. Martin acknowledged that the section of the eave rail should have been on the plans. Mr. Berryman indicated that by not specifying the section, the contractor may “interpret the plan, and put whatever he wants.” Though not a “major issue,” Petitioner proved, by clear and convincing evidence, the elements of Count 7.C. that Respondent failed to show the section and therefore to define and detail the “2x3 Special” eave rail. Count 7.D. Count 7.D. alleged that the 2x6 SMB post element and the 2x7 SMB beam element of Frame A are overstressed at code- prescribed design loading, and that the 2x6 SMB post element of Frame B is overstressed, and that Respondent therefore failed to proportion the subject framing elements in compliance with FBC strength standards. In general, the evidence elicited from the experts was contradictory, including evidence of the standard for measuring stresses; the assumptions relied upon for determining the manner in which structural elements were connected, and other elements of the analysis. The testimony of the witnesses, both of whom were credible, failed to establish a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Thus, except as set forth in the following paragraph, Petitioner failed to prove, by clear and convincing evidence, the elements of Count 7.D. that the structure elements were overstressed, and that Respondent failed to proportion the subject framing elements in compliance with FBC strength standards. This finding is not one that the elements identified in the allegation were actually compliant, but is one based on a failure of proof. As to one connection at which the Frame A beam attached to the carrier beam, which was identified by Mr. Martin as ID 3028, the evidence was clear and convincing that the applied bending moment, assuming that all of the connections of Frame A were fixed, was 27,201.9 inch-pounds, which exceeded the allowable bending moment calculated by Mr. Driscoll. There was no evidence that the allowable bending moment used in that analysis was unsupported by sound engineering principles. Thus, at the ID 3028 location where the Frame A beam attached to the carrier beam, Frame A was overstressed. Thus, Petitioner proved, by clear and convincing evidence, the elements of Count 7.D. that Frame A was overstressed at code-prescribed design loading and that Respondent therefore failed to proportion the subject framing elements in compliance with FBC strength standards. Count 7.E. Count 7.E. alleged that Respondent failed to provide a foundation plan for the specific construction proposed. Mr. Martin testified that documents sealed and submitted by Respondent were sufficient to establish the foundation plan for the Emilion project. In Mr. Martin’s opinion, the details, including the “Typical Post Base Detail” and “Typical Foundation Details,” were adequate to enable a contractor to construct the project in accordance with the engineering design document. Mr. Berryman did not agree that the foundation elements depicted in the detail sheet were sufficient to establish a foundation plan. However, his opinion in that regard was largely predicated on his presumption that the preprinted disclaimer that “certification extends only for the tabulated spans of the structural shapes listed” meant that the entire detail sheet was to be disregarded except for the span table. In Mr. Martin’s opinion, the limitation or “disclaimer” language related only to beam spans, and did not serve to disclaim Respondent’s responsibility for the information contained in the certified detail sheets. It is common for an engineer to incorporate standard details into a design when appropriate. When a document is sealed, whether an original drawing or a standardized detail sheet, that seal represents the certification that the engineer is taking responsibility for the document. As indicated previously, the construction of the disclaimer applied by Mr. Berryman has the effect of nullifying the detail sheet in its entirety, except for the span table. The undersigned finds that a more reasonable construction is that the limitation serves to ensure that the span table does not apply to shapes, sizes, and spans not set forth therein. By applying his seal to the detail sheet, the undersigned finds that Respondent incorporated those details into his plans, and took responsibility for the plans incorporating those details. For the reasons set forth herein, the undersigned accepts that the detail sheet has been properly incorporated into Petitioner’s plans for the Emilion Court project. That does not end the inquiry. The section entitled “Typical Foundation Details” does not specify a particular foundation plan. As noted by Mr. Berryman, the sheet provides detail for four different types of foundations. Petitioner failed to specify which foundation was applicable, and therefore gave the contractor no useful information as to which foundation type was appropriate for the project. Thus, Petitioner proved, by clear and convincing evidence, the elements of Count 7.E. that Respondent failed to specify a foundation plan for the Emilion Court project. Count 7.F. Count 7.F. alleged that Respondent failed to address the design of the structure’s foundations and failed to verify that the foundations meet the FBC strength requirements. The basis for Count 7.F. is generally the same as that given for Count 7.E. For the reasons set forth herein, the undersigned accepts that the foundation detail sheet has been properly incorporated into Petitioner’s plans for the Emilion Court project. As set forth in the analysis of Count 7.E., the typical foundation details do not specify a particular foundation plan. Petitioner failed to specify which foundation was applicable and, therefore failed to address the design of the structure’s foundations and failed to verify that the project-specific foundation met the FBC strength requirements. Thus, Petitioner proved, by clear and convincing evidence, the elements of Count 7.F. Count 7.G. Count 7.G. alleged that Respondent failed to indicate the size, section, location, and configuration of the typical diagonal roof bracing and all wall-bracing components for a lateral bracing system. As to the size, section, location, and configuration of the typical diagonal roof bracing, Mr. Martin testified that “I do not see any diagonal bracing whatsoever. It’s all purlins and there’s no diagonal bracing.” However, Mr. Martin was not able to tell whether Respondent determined that diagonal bracing was not required in the roof section, and in that regard testified that “since this has an L-shaped plan to it and it has host walls in both directions to connect to, then the roof bracing may not be required.” Mr. Berryman’s testimony as to the diagonal roof bracing was fairly conclusory, and failed to establish the fundamental element that diagonal roof bracing was necessary for the Emilion Court project. Although the evidence was clear and convincing that Respondent failed to include roof-bracing details, the fact that it was not proven that roof bracing was necessary leads the undersigned to find that Petitioner failed to prove, by clear and convincing evidence, that the lack of roof-bracing detail in this case constitutes a violation as alleged in Count 7.G. Mr. Berryman’s testimony as to the deficiencies in the description of the cable wall-bracing system was predicated on his opinion, previously discussed herein, that the typical cable bracing details contained on the detail sheet submitted with the plans must be disregarded due to the “span table” limitation. For the reasons previously discussed, the undersigned finds the limitation does not serve to negate the detail, nor was that Respondent’s intent. Furthermore, Respondent modified the detail in his drawings by specifying the use of 3/16” cable, rather than the standard 3/32” cable provided in the detail. Therefore, Respondent separately acknowledged and certified that detail. Mr. Martin testified that the plans, when read in conjunction with the certified details, provide sufficient information as to the wall-bracing components. Thus, Petitioner failed to prove, by clear and convincing evidence, the elements of Count 7.G. that Respondent failed to indicate the size, section, location, and configuration of the wall-bracing components. Count 7.H. Count 7.H. alleged that Respondent failed to address the design of the structure’s bracing elements and failed to verify that the structure’s bracing elements meet the FBC strength requirements. For the reasons set forth in the analysis of Count 7.G., Petitioner failed to prove, by clear and convincing evidence, the elements of Count 7.H. that Respondent failed to address the design of the structure’s bracing elements and failed to verify that the structure’s bracing elements meet the FBC strength requirements. Count 7.I. Count 7.I. alleged that in the column of the table for 5’0” Post Spacing and Exposure Category B in “Drawing 1 of”, the 2x4 SMB, 2x5 SMB, 2x6 SMB, 2x7 SMB, 2x8 SMB, 2x9 SMB, and 2x10 SMB posts, and the 2x7 SMB beam element of Frame A are overstressed at the listed span and loading, and that in the column of the table for 7’0” Post Spacing and Exposure Category C, the 2x4 SMB, 2x5 SMB, 2x6 SMB, 2x7 SMB, 2x8 SMB, 2x9 SMB, and 2x10 SMB, posts are overstressed at the listed span and loading. The calculation of whether a support member is overstressed varies greatly depending on the means by which the support members are fastened to one another. In general, measurements are taken at the base, at the shoulder, and at the carrier beam or other fixed structure to which a member is attached. If members are fastened by means of a single fastener, they are characterized as “pinned” connections. Pinned connections have greater stresses exerted by rotation and bending. If members are fastened together with multiple fasteners, they are generally characterized as “fixed” connections, with the degree to which they are fixed somewhat dependant on the number of fasteners per connection. Mr. Berryman determined that Respondent assumed that the mansard roof had pinned connections at the base, at the shoulder, and at the connection to the supporting structure. In making that determination, as with regard to other counts, Mr. Berryman disregarded the detail sheet that accompanied Respondent’s drawings due to General Notes and Design Criteria, #12, that “[c]ertification extends only for the tabulated spans of the structural shapes listed. The engineer of record shall verify all other details including overall stability.” Therefore, despite Respondent having included the detail sheet that clearly showed connections with multiple fasteners as part of his engineering package, Mr. Berryman opined that the disclaimer “specifically excluded all of the details in the project from his certification. Then there was nothing for me to consider regarding those details. They’re not part of his work.” As a result, Mr. Berryman concluded that Respondent “didn’t design any connections. And actually, I found an issue with his work because he didn’t design any connections.” The detail sheet provided demonstrates the typical post to beam connections by the dimensions of each of the structural members being connected. Each of the typical joints called for multiple screws. Therefore, the joints were not pinned, as assumed by Mr. Berryman, but were closer to fixed joints. Thus, the assumption used by Mr. Berryman that joints were pinned -- an assumption that would be expected to materially affect the conclusions as to the stability and strength of the structure -- was incorrect. In general, the evidence elicited from Mr. Berryman and Mr. Martin was contradictory, including evidence of the standard for measuring stresses, the assumptions relied upon for determining the manner in which structural elements were connected, and other elements of the analysis. The testimony of the witnesses, both of whom were credible, failed to establish a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Thus, Petitioner failed to prove, by clear and convincing evidence, the elements of Count 7.I. This finding is not one that the elements identified in the allegation were actually compliant, but is one based on a failure of proof. Count 7.J. Count 7.J. alleged that Respondent failed to address the design and verify the structure’s connections, bracing and anchorage, and failed to verify that they meet the FBC strength requirements. The basis for the allegation is that the certification of the generic details and specifications is limited to the tabular span data listed on the generic details and specifications drawings. Therefore, Count 7.J., on its face, requires that the details submitted by Respondent with his drawings be disregarded. As discussed several times previously, Mr. Berryman has expressed his opinion that the detail sheets submitted with the plans must be disregarded due to the “span table” limitation. For the reasons previously discussed, the undersigned finds the limitation does not serve to negate the details, nor was that Respondent’s intent. Thus, since Petitioner failed to demonstrate that the information conveyed in the details did not comply with the FBC, and for the reasons otherwise expressed with regard to other similar counts, Petitioner failed to prove, by clear and convincing evidence, the elements of Count 7.J. Count 7.K. Count 7.K. alleged that the beam span table in “Drawing 2”, the 2x4, 2x5, 2x6, and 2x8 beam elements are overstressed at the listed span and loading in frame configurations allowed by the table, and that the 2x2 snap beam element is overstressed for all spans listed. Mr. Berryman’s opinion that the structure was overstressed is, again, largely predicated on his assumption that the structure had pinned connections. The evidence is more persuasive that the connections were fixed. For the reasons set forth in the analysis of Count 7.I., including the contradictory testimony of the two generally credible witnesses, the evidence failed to establish a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Thus, Petitioner failed to prove, by clear and convincing evidence, the elements of Count 7.K. This finding is not one that the elements identified in the allegation were actually compliant, but is one based on a failure of proof.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Professional Engineers enter a Final Order finding that Respondent is guilty of violating section 471.033(1)(g), Florida Statutes, and Florida Administrative Code Rule 61G15-19.001 for the counts identified herein. It is further recommended that Respondent be reprimanded, that he be placed on probation for two years, that his license be restricted from practicing structural engineering involving the design of aluminum structures until such time as he passes and submits proof of passing the NCEES Structural Engineering Examination, that he be fined $2,000, and that costs related to the investigation and prosecution of this case be assessed against him. DONE AND ENTERED this 6th day of November, 2012, in Tallahassee, Leon County, Florida. E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2012.
