The Issue The issue is whether Oliver J. Turzak violated statutes and rules governing the practice of engineering as charged in the Amended Administrative Complaint filed with the Clerk of the Florida Board of Professional Engineers (the “Board”) on October 4, 2012.
Findings Of Fact Petitioner is charged with regulating the practice of engineering pursuant to chapter 455, Florida Statutes. The Administrative Complaint at issue was filed by the Florida Engineers Management Corporation (“FEMC”) on behalf of Petitioner. FEMC is charged with providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers pursuant to section 471.038, Florida Statutes. Respondent is, and at all times material to these proceedings has been, a licensed professional engineer in the State of Florida, having been issued license number PE 18230. Respondent’s last known address is 5405 Water Street, New Port Richey, Florida 34652. On April 20, 2008, Respondent signed, sealed, and dated a Settlement Stabilization Plan for the Fish Residence located at 11251 Knotty Pine Drive, New Port Richey, Florida (“Fish Residence Project”). On June 10, 2008, Respondent signed, sealed, and dated an engineering opinion letter (“Letter”) which was addressed and sent to Champion Foundation Repair, the entity which was Respondent’s client for the Fish Residence Project. The Letter stated in material part: [Respondent], whose signature appears below, has verified placement of twenty-seven (27) exterior piers and twenty-five (25) interior jack pins as located on the drawings by the same job number. The piers all achieved sufficient load bearing characteristics to transfer the house weight to the piers and to close cracks substantially and stabilize the foundation. The remediation program was developed according to geological data supplied by Central Florida Testing Laboratories, Inc., dated November 2007. Similar pier reports on numerous structures with similar problems have demonstrated long term success without additional settlement. Therefore, it is the opinion of the [Respondent] that the location has been repaired and stabilized and, further, that there is no evidence of new sinkhole activity at the location. In compliance with Florida Statute 627.707, the report and remediation program was prepared under the supervision of a Registered Professional, whose field of expertise is a Geo-Technical Engineer. The Board has adopted Responsibility Rules of Professional Engineers (“Responsibility Rules”). These rules are contained in Florida Administrative Code Chapters 61G15-30 through 61G15-35. Professional engineers, who perform services covered by the Responsibility Rules, are required to comply with those rules. Rule 61G15-30.002(1) mandates that Respondent, as the structural engineer of record, is professionally responsible for the documents prepared for the Fish Residence Project. As such, Respondent is responsible for producing a document that complies with the applicable portions of the Responsibility Rules. Respondent acted as Engineer of Record of the Structure for the Fish Residence Project as that term is defined in rules 61G15-31.002(1) and 61G15-31.003(1). As such, all structural documents prepared, signed, sealed, and dated by Respondent must contain the information set out in rule 61G15-31.002(5), as mandated by rule 61G15-31.001, setting out the General Responsibility standards for engineers designing structures. Section 471.033(1)(g), Florida Statutes, provides that an engineer is subject to discipline for engaging in negligence in the practice of engineering. Florida Administrative Code Rule 61G15-19.001(4) provides that negligence constitutes “failure by a professional engineer to utilize due care in performing in an engineering capacity or failing to have due regard for acceptable standards of engineering principles.” Rule 61G15-19.001(4) also provides that: [F]ailure to comply with the procedures set forth in the Responsibility Rules as adopted by the Board of Professional Engineers shall be considered as non-compliance with this section unless the deviation or departures therefrom are justified by the specific circumstances of the project in question and the sound professional judgment of the professional engineer. Respondent’s June 10, 2008, Letter is an engineering “certification” as that term is defined in Florida Administrative Code Rule 61G15-18.011(4): statement signed and sealed by a professional engineer representing that the engineering services addressed therein, as defined in section 471.005(6), F.S., have been performed by the professional engineer, and based upon the professional engineer’s knowledge, information and belief, and in accordance with commonly accepted procedures consistent with applicable standards of practice, . . . . “Certifications” are subject to the standards set out in Florida Administrative Code Rule 61G15-29.001, which require that if an engineer is presented with a “certification” that “involve[s] matters which are beyond the engineer’s scope of services actually provided” that the engineer must “decline to sign . . . such certification.” Section 471.033(1)(a) provides that an engineer is subject to discipline for “[v]iolating . . . [a] rule of the [B]oard.” Section 471.033(1)(e) provides, in material part, that a professional engineer is subject to discipline for “[m]aking or filing a report or record that the licensee knows to be false” when the report is “signed in the capacity of a licensed engineer.” Rule 61G15-19.001(6) provides that: A professional engineer shall not commit misconduct in the practice of engineering. Misconduct in the practice of engineering as set forth in Section 471.033(1)(g), F.S., shall include, but not be limited to: * * * (b) Being untruthful, deceptive, or misleading in any professional report, statement, or testimony whether or not under oath or omitting relevant and pertinent information from such report, statement or testimony when the result of such omission would or reasonably could lead to a fallacious conclusion on the part of the client, employer or the general public; . . . . The Fish Residence In 2007, the residence located at 11251 Knotty Pine Drive in New Port Richey, Florida (the “Fish Residence”), experienced structural damage from subsidence in the ground underlying the home. As a result, a claim was made to Fish’s insurance company, and an investigation was commenced. Central Florida Testing Laboratories, Inc. (“CFTL”), a geotechnical engineering firm, performed an in-depth analysis and found, in a signed, sealed, and dated engineering report issued on November 20, 2007, that the subsidence was likely caused by a number of factors, including sinkhole activity. As a result, the Fishes hired a contractor, Champion Foundation Repair (“Champion”) to remediate the damage. Champion hired Respondent to perform the engineering services necessary to obtain a permit for the remediation, inspect the construction, and complete a report certifying the adequate completion of the work. Respondent had a long history of providing similar services to Champion in the past, having performed engineering services in over 200 projects for Champion. Respondent created, signed, sealed, and dated on April 20, 2008, a Settlement Stabilization Plan (“Plan”), which formed the design basis for the work Champion carried out. Well into the project, the Fishes became dissatisfied with the work done by Champion. Champion was terminated as the contractor before the work was finalized and before Respondent was able to perform a final inspection of the property. Litigation was commenced and Bracken Engineering (“Bracken”), a forensic structural/civil engineering firm was engaged to perform an investigation of the work performed by Champion and Respondent for the pending litigation. Bracken issued a lengthy engineering report (“Bracken Report”), under engineering seal, on June 20, 2011. The Bracken Report found Respondent’s Plan deficient, that Respondent was not adequately knowledgeable about the site, that Champion’s implementation of the Plan, and Champion’s construction work as a whole was flawed and inadequate. Subsequent to the issuance of the Bracken Report, a complaint was filed with the Board, and these proceedings were initiated. Settlement Stabilization Plan for the Fish Residence Roger Jeffery opined that the Plan failed to meet required engineering standards. The parties agree that when a structure, such as the Fish Residence Project, is initially built, the loads are directly transferred to the foundation, which then transfers the loads directly and uniformly as a continuously supported structure to the underlying soil. However, when, as occurred in this case, the structure’s loads are no longer transferred directly and uniformly to the ground through the foundation, but are transferred through pins which underlie the foundation, the foundation itself now acts as a beam or beams and is subject to the stresses applied to the beams. Respondent asserted that the foundation load would remain continuous, and therefore stable, since grouting had been poured under the Fish Residence to consolidate and stabilize the soils. However, Respondent’s plan did not call for grouting to be used. Moreover, according to the Bracken Report, no grouting was ever placed under the Fish Residence, even though it was called for in the CFTL Report to stabilize the structure. Respondent’s failure to perform a final inspection resulted in an inaccurate assumption and opinion. Respondent’s claim that grouting placed in the void under the structure reconstituted the original soil conditions is rejected, especially in light of the fact that Respondent also analyzed the pins and foundation in a beam configuration--a simple span beam. Further, Respondent’s analysis must be discounted because the calculations justifying his conclusion that the structure was adequately supported was performed in December 2013, well after these proceedings commenced and more than five years after the Plan had been created by Respondent. As a result of the changed structural support system (from ground support to pins), the position of the pins is critical to the stability of the structure. If the pins are too far apart for the strength of the foundation’s materials to accommodate the foundation, now acting as a beam or beams, the foundation will be overstressed. Cracking, at a minimum, or collapse, at a maximum, can occur. Cracking or collapse can occur because the concrete slab foundation used at the Fish Residence does not have any existing top reinforcing steel in it. When asked if perhaps reinforcing steel might have been placed within the slab itself, Mr. Jeffery stated he had never seen such use of steel in over 40 years. No evidence to support the steel within the slab theory was presented. When the newly installed pins become the structural support, a negative bending moment is introduced to the top of the foundation, now acting as a beam. The top of the foundation is made only of concrete, which has little ability to resist the induced negative moment. As a result, deflection, racking, and ultimate failure will be the result if the pin placement and the spans created by the placement are inadequately designed. Respondent’s after-the-fact calculations do not address this issue. Using a continuous beam analysis, the preferred method to evaluate the beam/pin assemblage design in structures like the Fish Residence, the spacing of the pins (usually ten feet apart) designed by Respondent coupled with the loads generated by the foundation and the lack of reinforcing steel in the top portion of the foundation would result in stress that would exceed the strength of the concrete and, at a minimum, the concrete would eventually crack. Dr. Ahmed Said, Respondent’s expert, agreed with this conclusion. Even using a simple beam analysis, the design method Respondent testified he used and that Dr. Said agreed was commonly used, movement, resulting in cracks at the foundation slab, would occur. Again, since no reinforcing steel exists at the top of the slab, as a matter of simple physics, the concrete would have to respond to the deflection that would occur at the bottom of the foundation and, concrete being weak, would likely crack or worse at the top. Respondent provided no persuasive rebuttal to Mr. Jeffery’s analysis. First, Respondent claimed that elevations taken at the site in 2013 showed minimal deflective movement, proving the Plan design was sufficient. However, Mr. Jeffery noted that subsequent elevations taken at the completed structure would have little meaning regarding the adequacy of the design since: the design stands alone and is not affected by how the contractor implemented it; and no one could know whether the design, as constructed, would withstand the required stresses until it was subjected to full design loading, which would have to include the full wind loads to which the structure was designed. There is no evidence the structure was ever subjected to such stress in the period between its construction in 2008 and the later recorded elevations. Next, Respondent claimed the 3-foot “spreaders” attached to the pins would reduce the span of the foundation acting as a beam and thus would overcome the lack of reinforcing steel in the top of the foundation and the resulting overstress. The problem with this assertion is that the Plan does not call for “spreaders” to be placed in the design by any notations that are readily and universally cognizable. Respondent admitted that the symbol regarding the use of the spreaders was agreed to only between Champion and him, and was not included in the Plan. However, even if the notations used by Respondent could be interpreted as calling for the use of the “spreaders,” the “spreaders” would not materially impact the fact that the foundation, acting as a beam, would be overstressed, since a negative moment would still exist due to the lack of reinforcing steel at the top of the foundation. Finally, Respondent asserted that Mr. Jeffery’s analysis was flawed since Mr. Jeffery had assumed the Fish Residence was a masonry structure whereas Respondent claimed the structure was a wood frame covered with a stucco exterior. This issue is confused by the fact that both the CFTL and Bracken Reports, upon which Mr. Jeffery relied, both stated the Fish Residence was a masonry structure, although the CFTL Report notes the structure was initially constructed as wood frame. In any event, Mr. Jeffery testified that regardless of the masonry versus wood frame question, the structure would still be overstressed. Changing the construction from masonry to wood frame/stucco veneer might lessen the overstress, but not materially. In addition to the overstress created by failing to address the induced negative moment at the top of the foundation, Respondent’s design also resulted in a shear load which exceeded the maximum allowable under the American Concrete Institute 318 Concrete Code; and, since that code is incorporated into the Florida Building Code (“FBC”), the requirements of the FBC as well. The shear load factor is especially relevant since Respondent did not assure that the pins would not be placed under windows and doors where this issue is critical. Respondent did not address the shear issue as it applied to windows and doors in his after-the-fact calculations. The Plan is also deficient since it did not indicate the placement of windows and doors in the Fish Residence Project. By not doing so, the pins, when put in the ground, could be placed underneath these internal spaces which do not then form a continuous roof/wall/foundation assembly. If that occurred, and it apparently did in the Fish Residence on four occasions, the shear problem described above is exacerbated, since at either side of a door or window a point load is created and the shear stress increased. The Plan also fails to include required information. While the Plan calls for the use of a “FastSteel” product, the Plan does not include any product specification number or the strength of the material to be used. Although Respondent stated that the contractor, based upon its experience, knew what was intended, ultimately Respondent admitted that the required information was not in the Plan. Similarly, the Plan did not include the design loads and criteria used in the design and provided no building codes and standards. Respondent admitted the Plan lacked this required information. The missing information is important. Only by including such information on design documents can the engineer adequately communicate to the reviewing building code plans examiner or a contractor what the design engineer intended. By not including this required information, the reviewer can be uncertain as to whether the engineer used the correct loadings or designed the structure in accordance with the correct edition of the building code. Similarly, failing to provide sufficient information concerning the products to be used may lead a contractor to utilize the wrong product during construction. The Plan was submitted to Pasco County for issuance of a permit. The county building department issued a permit for the work to be performed. Mike Mosher of Champion believed the Plan included all the specifications he needed to identify the components to be used and the manner in which the work was to be performed. He also testified the work was completed consistent with the Plan. The June 10, 2008, Certification Letter Respondent issued the June 10, 2008 Certification Letter (“Letter”) under seal to his client before he completed the inspections necessary for the conclusions in the Letter to accurately reflect the opinions contained in it. Both Respondent and his client, Champion, agree that since the client had been denied access to the Fish Residence Project, no final inspection of the site by Respondent ever occurred. As a result, Respondent admitted that, when he signed, sealed, and issued the Letter, the engineering services, upon which the certification in the Letter was based, had not yet occurred. The evidence proved that Respondent’s last appearance at the Fish Residence Project occurred on or about May 5, 2008, and that most of the work done at the site occurred after that date with the final construction finishing on or about May 30, 2008. As a result, the conclusions and opinions contained in the Letter were not based upon accurate and contemporaneous engineering analysis. Since the Letter purports to be grounded in engineering inspections, the statements in the Letter were not fully based upon the services Respondent actually provided. While not entirely clear from the evidence and testimony, had Respondent had the ability to perform a final inspection, he would have had the opportunity to discover several deficiencies in the construction. The Bracken Report detailed several deficiencies and non-conformances with the Remediation Plan. These deficiencies included: 1) failure to drive 5/6ths of the pilings to the depth prescribed by the notes to the Plan; a large number of pins found beneath door and window openings; mis-installation of pins and pin assemblages; and 4) no grouting placed in the ground although Respondent intended that grouting be used. Respondent agreed that at least some of the Bracken Report conclusions were warranted. Respondent asserts that, although the Letter was issued prematurely, Respondent should not be held accountable since the Letter “never went public.” This contention is rejected. The Letter was a final engineering report/certification and, upon issuance to Respondent’s client, Champion, was fully subject to all engineering standards, rules, and statutes. Since the Letter contained conclusions that were inaccurate and based upon information that was not collected under Respondent’s direct supervision, issuance of the Letter constituted negligence and misconduct in the practice of engineering. Respondent’s Prior History of Discipline Respondent has previously had discipline imposed. The instant case is the first in more than 40 years of Respondent practicing engineering that involved a subsidence remediation plan. Respondent’s first prior discipline was in FEMC Case No. 00-0086. In that case, Respondent was hired to correct building code issues identified by a county building department. The drawings he made violated the building code requirements, contained deficiencies, and were not in compliance with the standard practice of engineering. Respondent proceeded to hearing without benefit of legal counsel. A final order was entered by the Board reprimanding his license, fining him $1,000, plus costs of $302.93, placing him on probation for one year, and requiring he complete a course in professionalism and ethics while on probation. Respondent’s second prior discipline was in FEMC Case No. 01-0079. That matter was based upon drawings that were dated February 16, 2001. Respondent was not represented by counsel in that proceeding. In that proceeding, no proof was presented that the structure depicted in the plans by Respondent was ever built. Therefore, no direct risk of harm to the public was proven. Respondent entered into a Settlement Stipulation in that matter which was approved by the Board of Professional Engineers. He agreed to pay a total administrative fine of $7,000, plus $316.67 in costs and receive a reprimand on his license. He also received a one-year suspension of his license, followed by two years’ probation, and continuing education requirements. The other instance of discipline imposed against Respondent was in FEMC Case No. 2004037005. That complaint arose from plans that were signed by Respondent in June 2004. He was charged with signing plans he had not personally prepared or were not prepared under his supervision. Respondent entered into a Settlement Stipulation in that case that was approved by the Board. He paid a $5,000 administrative fine and costs of $750; received a reprimand on his license; received two years of probation; and was required to make detailed reporting to the FEMC during the probationary period. No additional evidence of prior disciplinary matters was offered other than the three cases described above.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent Oliver Turzak’s Professional Engineer license be reprimanded, and that the license shall be suspended for a period of one year. Upon termination of the suspension, Respondent shall be reinstated under terms and conditions of reinstatement as the Board determines are appropriate, including two years of probation with terms the Board deems appropriate. Respondent shall also be fined $1,000 per count ($2,000 total fine). Finally, Petitioner shall be entitled to assess costs which are related to the investigation and prosecution of this case, other than costs or fees associated with an attorney’s time, as provided in section 455.227(3), Florida Statutes. DONE AND ENTERED this 6th day of May, 2014, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2014. COPIES FURNISHED: Zana Raybon, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303 Michael Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 David P. Rankin, Esquire Law Office of David P. Rankin, P.A. 18540 North Dale Mabry Highway Lutz, Florida 33548 John Jefferson Rimes, III, Esquire Florida Engineers Management Corporation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303
The Issue Whether Respondent, Garry Vermaas, Ph.D., P.E., committed the acts alleged in the Administrative Complaint (as submitted in the parties' joint pre-hearing submission).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: At all times material to the allegations in the Administrative Complaint, Respondent was a licensed professional engineer with License No. PE 61163. Respondent was the structural engineer of record for a 13-unit apartment building complex located at 214 Salamanca Avenue, Coral Gables, Florida. As such, on or about January 24, 2007, Respondent signed and sealed the last iteration of structural engineering documents for the project which were filed with the City of Coral Gables, Florida, as part of the application for a building permit. Respondent was the structural engineer of record for the above-referenced project as that term is used in Florida Administrative Code Rule 61G15-31. Petitioner is charged with providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers pursuant to Subsection 471.038(4), Florida Statutes. The Florida Board of Professional Engineers regulates the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes. The Administrative Complaint alleges that Respondent's structural engineering plans were deficient and failed to comply with acceptable standards of engineering practice, citing five instances: The masonry wall on Gridline A at the first level is not adequately designed in that it is overstressed when compared to the Florida Building Code specified wind loads. The block parapet walls at Elevation +49 and +53 are, also, not adequately designed insofar as they are overstressed when compared to the Florida Building Code specified wind loads. Wall Sections A and B on Sheet 1.10 show tapered balcony slabs with a one-inch step. The wall sections are inconsistent with the Typical Cantilever Balcony Detail on Sheet S2.01 and reduce the cover on the tendon to less than one inch required by the Florida Building Code. The placement of reinforcing bars in the bottom of the cantilevered balcony slabs on Sheets S2.02, S2.04 and S2.06 cannot be reasonably determined from the information on these sheets. Sheet S2.10 shows that the stair adjacent to the elevator must rise from the fourth floor at Elevation +35 to the level of the pool deck at Elevation +49. This is a rise of 14 feet and contrasts with the stair at Gridline A which rises from the fourth floor and terminates at the fifth floor at Elevation +45. As a result, the stair adjacent to the elevator requires an additional stair run and a landing neither of which have been addressed in Respondent's design documents. The masonry wall on Gridline A at the first level is not adequately designed in that it is overstressed when compared to the Florida Building Code specified wind loads. On Sheets S1.03 and S1.04 Respondent's structural engineering plans show a concrete masonry wall at Gridline A extending from reference lines 1.1 to 1.8 on the west side of the building; the floor-to-floor distance is 15 feet. The wall is subject to appreciable gravity load from above through vertical connective rebar. Post tension design of the floor system is unique; when the post tension concrete slab deflects, the vertical rebar will transfer the load to the wall in question. As a result of this loading, the subject wall receives loading in more than one direction and should be defined as a main wind force resisting system and should be designed as it is in Respondent's plans. The suggestion by Petitioner's experts that the wall is overstressed by 22 or 65 percent is a result of applying conservative values and failing to include the vertical load on the wall. Within the conservative and non-conservative values allowed by the Florida Building Code, there could be a 400-percent yield difference. The conclusion that the wall is overstressed by 22 or 65 percent does not prove negligence. The block parapet walls at Elevation +49 and +53 are not adequately designed insofar as they are overstressed when compared to the Florida Building Code specified wind loads. Average vertical bar spacing, as used by Respondent in the design of the subject parapet walls, is allowed by the Florida Building Code and is called the "plate" method of design. Petitioner's experts used calculations based on the "strip" method, also allowed by the Florida Building Code. The resulting suggestion that the parapet walls are overstressed by 24 or 62 percent is a result of the differences in analysis of the two methods and the application of conservative values. As stated above, the application of conservative or non- conservative values can result in a 400-percent yield differential. Wall Sections A and B on Sheet 1.10 show tapered balcony slabs with a one-inch step. The Wall Sections are inconsistent with the Typical Cantilever Balcony Detail on Sheet S2.01 and reduce the cover on the tendon to less than one inch required by the Florida Building Code. The subject wall sections are full wall sections and are not inconsistent, but demonstrate, generally, what the wall will look like. The slab design does not remain constant. The Typical Cantilever Balcony Detail on Sheet S2.01 shows that the post tension slab steps down at the top and bottom. The one-inch step-down prevents wind-driven rain from flowing in from outdoors. The resultant one-inch step-down on the bottom of the slab relates to maintaining proper clearance on the tendon. The detail (Typical Cantilever Balcony Detail on Sheet S2.01) demonstrates the one-inch step-down and would not be confused by an experienced post-tension subcontractor. The plans consistently refer to an eight-inch slab. The placement of reinforcing bars in the bottom of the cantilevered balcony slabs on Sheets S2.02, S2.04 and S2.06 cannot be reasonably determined from the information on these sheets. The exact placement of mild reinforcement in post tension design is not important. These plans are adequate in that they label the location of the bars (top or bottom) and clearly describe how the bars should be distributed. This item, according to Petitioner's expert, is not related to design, but to drawing preparation. Testimony revealed that the information used is imported through AutoCad software. These notes are clearly understandable to someone experienced with post tension design and construction. Sheet S2.10 shows that the stair adjacent to the elevator must rise from the fourth floor at Elevation +35 to the level of the pool deck at Elevation +49. This is a rise of 14 feet and contrasts with the stair at Gridline A, which rises from the fourth floor and terminates at the fifth floor at Elevation +45. As a result, the stair adjacent to the elevator requires an additional stair run and a landing neither of which have been addressed in Respondent's design documents. There is a similar staircase from the ground floor to the fifth floor elevation. An ancillary detail, Section G on Sheet S1.13 shows how to get from the fifth floor slab to the pool deck. Section G has three different staircases that show the contractor how the stairs should be constructed. The additional stair run is addressed on this section. The design and drawings comply with Section 1603.1 of the Florida Building Code, which states that "[t]he design loads and other information pertinent to the structural design required by Sections 1603.1. through 1603.1.8 shall be clearly indicated on the construction documents." Drawing presentations and which portions of the structure require more detail, is largely an opinion matter for each engineer to decide as long as he complies with the Florida Building Code. Respondent's expert witness, each of whom had excellent credentials and vast experience with post-tension design of floor systems, opined that Respondent's structural engineering documents for the subject project were not negligent in any way, and Respondent's drawings and calculations conform to acceptable engineering standards and safeguard the life, health, property and welfare of the public. Their testimony on the five alleged areas of negligence and their general conclusions are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Board of Professional Engineers, issue a final order dismissing the Administrative Complaint filed against Respondent, Garry Vermaas, Ph.D., P.E. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2009. COPIES FURNISHED: Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 N Monroe Street Tallahassee, Florida 32399-0792 John Jefferson Rimes, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Garry Vermaas Ground Floor Engineering 10125 West Colonial Boulevard, Suite 212 Ocoee, Florida 34761 Patrick Creehan, Esquire Chief Prosecuting Attorney Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Counts I, II and IV of the amended administrative complaint, and guilty of misconduct by affixing his signature and number to air-conditioning plans in Count VI. All other charges should be dismissed. It is further RECOMMENDED that Respondent be given the penalty set forth in paragraph 45 of this recommended order. DONE and ENTERED this 3rd day of February, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.
The Issue The issues in this case are whether Respondent, August T. Nocella, committed the violations alleged in the Administrative Complaint and, if so, what discipline is appropriate.
Findings Of Fact Petitioner, the Pinellas County Construction Licensing Board (Board), is the agency within Pinellas County, Florida, authorized under Chapter 89-504, Laws of Florida, as amended, to regulate and discipline the licenses of, among others, certified aluminum contractors. Respondent, August T. Nocella (Respondent), is, and has been at all times material hereto, a certified aluminum contractor in Pinellas County, Florida, having been issued license C-3197. At times relevant to this proceeding, Respondent was doing business as Allied Aluminum, located in St. Petersburg, Florida. In 1997, Ms. Mary J. Pugh had a small screened porch added to her house located at 12855 Gorda Circle West. Approximately two years later, in July 1999, the porch was damaged or destroyed by a storm. Thereafter, Ms. Pugh requested and received a proposal from Allied Aluminum to repair or rebuild the screened porch. On September 1, 1999, Respondent entered into a contract with Ms. Pugh to repair or reconstruct the previously existing screened porch. The contract provided that Respondent would install a new aluminum roof to replace the damaged existing screened porch roof, install gutters and trim, replace 13 feet of valance, replace the screen, and install a new wall front. The contract noted that a riser wall was required for "proper roof pitch." The contract price was $2,300.00, with $1,000.00 to be paid as a down payment and the remaining $1,300.00 to be paid upon completion of the project. Ms. Pugh paid Allied Aluminum in accordance with the terms of the contract. She made the first payment of $1,000.00 on September 1, 1999, and made the final payment of $1,300.00 on September 22, 1999, upon Respondent's completing the job. On or about September 16, 1999, Respondent obtained a permit for the repair or reconstruction of the screened porch at Ms. Pugh's house. Respondent began the project on or about September 15, 1999, and completed the job on September 22, 1999. Section 105.6 of the Standard Building Code, 1997 Edition, as amended,(Standard Building Code) requires local building officials, "upon notification from the permit holder or his agent," to make a final inspection of a building after the building is completed and ready for occupancy. In order to comply with the Standard Building Code, it was the responsibility of the permit holder, in this case, Respondent, to call local officials for a final building inspection. Upon completion of the inspection, a building official would then notify the permit holder of "any violations which must be corrected in order to comply with the technical codes." Respondent failed to notify building officials that the Pugh project was completed and ready for occupancy and, thus, ready for final inspection by appropriate building officials. As a result of Respondent's failure to call for a final inspection, building officials never inspected Respondent's work on Ms. Pugh's screened porch and made no determination as to whether the project complied with the applicable technical codes. In July 2000, during a storm, the roof of Ms. Pugh's screen porch collapsed. Relying on statements of unnamed contractors, Ms. Pugh believes that the roof collapsed because it did not have the proper pitch. Respondent attributes the collapse of the roof to the gutters being blocked with leaves. Despite these assertions no evidence was presented at hearing to establish the cause of the roof's collapsing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Construction Licensing Board enter a final order: (1) finding that Respondent failed to obtain a satisfactory inspection as alleged in Count One, and is guilty of the offenses described in Chapter 89-504, Subsections 24, (2)(d), (j), and (n), Laws of Florida; (2) imposing an administrative fine of $1,000.00 for the foregoing offenses; and (3) dismissing Count Two of the Administrative Complaint. DONE AND ENTERED this 28th day of December, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 28th day of December, 2001. COPIES FURNISHED: Don Crowell, Esquire Pinellas County Construction Licensing Board 310 Court Street Clearwater, Florida 33756 Rodney S. Fischer, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Suite 102 Largo, Florida 33773-5116 August T. Nocella 1017 Robinson Drive, North St. Petersburg, Florida 33710
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.
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 cause concerns whether the Respondent committed certain violations of Chapter 471, Florida Statutes (1989), governing the regulation of licensure and practice of Professional engineers in the State of Florida by certain alleged negligent acts with regard to the preparation of plans for a building and alleged engagement in the practice of architecture beyond the scope of authorized engineering practice.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulating the practice of engineering pursuant to Section 20.30, Florida Statutes, Chapters 455 and 471, Florida Statutes, and with enforcing the licensure standards for registered professional engineers in the State of Florida. The Respondent is a licensed engineer, licensed by the State of Florida, holding license number PE 0029985. His address of record is Charles Stokes Engineering, 3000 Highway 231, North, Lynn Haven, Florida 32404. In 1989, the Respondent contracted with James Carlton to prepare building plans for a restaurant known as the Crab Shanty in Panama City Beach, Florida. Numerous changes were effected in the plans, both before and during construction, such that the restaurant evolved finally as a three-story restaurant built primarily of wood with utility-pole type pilings or posts and beams for framing, including glued-laminated wood beams (glue-lam). An initial set of plans (Petitioner's Exhibit 1) were submitted to the Bay County Building Official, Mr. James Pybus. While the initial 11-page plans depicted in Petitioner's Exhibit 1 lacked some detail, especially with regard to electrical, plumbing, air conditioning and mechanical aspects, the plans were later augmented by an additional 11 pages depicting some of the previously absent details and Mr. Pybus confirmed that the practice of his agency is not to require more detailed plans of such electrical, plumbing, air conditioning, or mechanical work, if it comes within the scope of the exceptions set forth in Section 471.003(2)(i), Florida Statutes (1989). Those exceptions provide that licensed subcontractor, in those fields can design the electrical, plumbing, air conditioner, or mechanical aspects of a project themselves if they have the appropriate contractor's licenses without engineering registration. Therefore, Mr. Pybus' agency does not require that engineers preparing such plans, as to these aspects of the planning work, include such details if licensed contractors for those areas of the construction project will be doing the design and installation work, which was the case in this situation. Personnel under Mr. Pybus' direction inspected the building during construction and preformed a final inspection, all of which confirmed that the construction was in accordance with appropriate building codes. Mr. Pybus opined that his office had reviewed the plans submitted and determined that the plans had depicted sufficient detail for construction in accordance with the applicable codes. The Petitioner presented a consulting engineer, Mr. Harold Benjamin, as an expert witness. Mr. Benjamin opined that the Respondent had exceeded the limits of his engineering experience by signing and sealing plans which entailed mechanical engineering, electrical engineering, and, to some extent, the field of architecture. The Respondent, however, has worked for many years in the nuclear power industry, during which time he was actively involved in electrical, structural and mechanical engineering and design which, by this extensive experience, qualified him to sign and seal plans covering the fields of mechanical and electrical engineering. The evidence to this extent refutes the testimony of Mr. Benjamin, and it is rejected in this regard. Further, although the Respondent preformed a minor amount of architectural work in designing the building, the architectural aspects of his building design were clearly incidental to the major considerations of civil, mechanical, structural, and electrical engineering. Even Mr. Benjamin, the Petitioner's witness, conceded that the architectural aspect of the design work was incidental to the overall plan and design work involved and was on the order of approximately ten percent of the Respondent's work on the project. Mr. Benjamin testified that he observed certain omissions on the plans contained in Petitioner's Exhibit 1. Those omissions involve not showing the proper type of support for some stairs, a foundation plan not being labeled, wall sections not being properly shown, and an absence of an "electrical legend" on the face of the plans. He opined that heating and air conditioning plans were unclear as to duct size, air delivery and quantities to various rooms. Mr. Benjamin acknowledged, however, that he was basing this testimony on only the plans depicted in Petitioner's Exhibit 1, which consisted of the first 11 pages and it was shown that this was not the complete set of plans actually drawn and ultimately filed with the building department by the Respondent, which consisted instead of a total of 22 pages which showed much more detail then Mr. Benjamin had reviewed and upon which he based his testimony. Mr. Benjamin only saw the remaining portion of the plans in question very briefly shortly prior to hearing and acknowledged that many of the omissions had been supplied on the additional plan sheets. Mr. Benjamin also acknowledged in his testimony that flaws in the design alleged by a Mr. Coleman, a "complaining architect" had not been proven in his view and, therefore, the Respondent was not negligent in his design. Upon redirect examination, Mr. Benjamin acknowledged that he only opined that the Respondent was negligent in terms of not consulting with qualified electrical and mechanical engineers with regard to the project because of his previously discussed opinion that the Respondent's engineering experience or expertise did not extend to electrical and mechanical engineering. This opinion, however, has been refuted as delineated above. Concerning the structural design aspects of the building and plans, in view of Mr. Benjamin's letter report to the Department of June 12, 1989, coupled with Mr. Benjamin's testimony that he did not do a complete review of the plans and did not examine the building itself, Mr. Benjamin's testimony has not established any negligence on the part of the Respondent. It affirmatively establishes that any architectural practice the Respondent may have engaged in was only incidental to his engineering design work for the project as a whole. Further, the testimony of Mr. Benjamin to the effect that the air conditioning system appeared to him inadequate to handle the peak load, as generated by restaurant occupancy of nearly 100 people and the restaurant kitchen, it was demonstrated at page 41 of the transcript that Mr. Benjamin had not observed the restaurant and kitchen space at the building in question and was not aware of what the actual occupancy of the restaurant was. Therefore, he is not deemed competent to express expert opinions concerning the adequacy of the air conditioning equipment and design. The Petitioner also presented the testimony of Mr. Berton Hufsey, a mechanical engineer. He was accepted as an expert witness in this field. Mr. Hufsey initially expressed criticism about certain plumbing and HVAC (heating, ventilating and air conditioning) aspects of the plans. Mr. Hufsey acknowledged, however, that because his practice is in the Miami, Florida, area, he was not familiar with the extent of detail customarily shown on engineering plans in the Bay County area and, thus, was not familiar with the professional practice standards in the Bay County area in that regard. Mr. Hufsey initially opined that the grease trap for the restaurant was inadequately sized and that all kitchen and bathroom waste were routed though the grease trap; that the toilet vent was a "dry vent" and that a wet vent, which washes the bottom of the vent pipe, should have been employed. He criticized the absence of details of the water heater and the kitchen ventilating system not being shown to be coordinated and balanced, but acknowledged that two fans were shown and appeared to balance. He also opined that the plans did not show an innerconnect to shut off heat producing equipment when the fire extinguisher system was operating, that exhaust fans or windows were not shown for the bathroom/toilet area, that the gas furnace was not shown to have a flue connection, and that the HVAC system was not shown to have a condensate water drain. Mr. Hufsey acknowledged in his testimony, however, that he thought, based upon this opinion and review of the initial set of the 11-page plans he had reviewed in making his recommendation to the Department, that the complaint had some validity but he would not go so far as to testify that negligence had occurred. Then, when confronted in his testimony by the as-built" plans, which he only saw on the day of the hearing, Mr. Hufsey acknowledged that the grease trap was properly designed, that the kitchen supply and exhaust fans were also appropriately detailed on the as-built plans, as well as the fire sprinkler system, and the air conditioning system. In summary, after reviewing the actual as-built, 22-page set of numbered and sealed plan sheets prepared by the Respondent, Mr. Hufsey acknowledged that the omissions and lack of detail noted on the first 11-page set of "rough plans" had been corrected with the exception of the "dry vent" for a toilet. Mr. Hufsey, however, acknowledged in regard to this that an experienced, qualified plumbing contractor would know the correct type of vent to install for the toilet, even if it was not actually depicted on the plans, and acknowledged that professional engineering practice in Florida provides that certain types of jobs can be designed and built by the licensed trade contractors such as plumbers, electrical contractors and mechanical contractors and that these types of trade contractors can design and build the plumbing, heating and air conditioning, and electrical aspects of a job such as this without having the design actually placed in the plans by the licensed registered engineer. See the exception contained in Section 471.003(2)(i), Florida statues (1989). Moreover, the Respondent, in his plans, affirmatively indicated that the sprinkler system had to take priority in its design and location over the mechanical, heating, air conditioning equipment and duct work, as well as the plumbing piping. This was a safety feature in order to ensure that the sprinkler system had effective coverage in the event of fire. Because of this safety feature, noted on the plans by the Respondent engineer, there necessarily had to be some degree of flexibility for installing the HVAC, the duct work~ and the plumbing work for those pertinent, licensed trade contractors. This was an additional appropriate reason why specific detail of the plumbing, electrical, and mechanical HVAC aspects of the job were not firmly and finally designed by the Respondent, because of the necessarily precise location of the sprinkler system shown on page 15 of the as-built plans. Thus, because of the exception allowed in the statute for design of HVAC, plumbing, and electrical work by the appropriate, licensed trade contractors and because of the priority the Respondent himself noted on the plans for the sprinkler system design and installation, it has not been shown that the Respondent was negligent in regard to the lack of detail on the plans for HVAC, electrical and plumbing design. Further, Mr. Hufsey acknowledged in his testimony concerning the alleged water heater detail deficiency, the lack of depiction of the air conditioning condensate drain, the furnace flue, and air supply; that experienced, licensed trade contractors in those relevant trades would be able to design and build those features into the building appropriately within the exception allowing them to do so at Section 471.003(2)(i), Florida Statutes. Mr. Garcia testified as an expert in the field of electrical engineering. Mr. Garcia stated that the plans submitted for the permit were deficient as to electrical items, thereby demonstrating negligence. Specifically, Mr. Garcia found that the initially submitted plans depicted no "panel scales"; no electrical risers; no load analysis; no specifications for lighting fixtures; insufficient detail to show compliance with the national electrical code and the energy code; that emergency lighting did not comply with the national electrical code; that no electrical legends were depicted; that circuits were not properly identified for lighting fixtures; that no schedule specifying light fixtures were shown; and that stairs were not shown to have the required emergency lighting. Mr. Garcia acknowledged in his testimony that the later, as-built plans depicted in Petitioner's Exhibit 8 showed that many of these items were corrected, although not all of them. He acknowledged, however, that on a project of this size that a licensed electrical contractor could design and build the required electrical items, equipment, and service, including the items he found not sufficiently depicted on the plans, without the services of a licensed engineer for the design, in accordance with the exception provided at Section 477.033(2)(i), Florida Statutes. Mr. Garcia testified, however, that a prudent engineer, if he omitted such detail from his plans, should make a notation on the plans to that effect to indicate that that design detail was to be provided by the licensed electrical contractor performing that aspect of the job. The Respondent failed to make this notation. The Petitioner presented the testimony of James Owen Power, a structural engineer accepted as an expert witness in that engineering field. Mr. Power expressed criticism concerning the Respondent's plans as demonstrating negligence in the practice of engineering in the following particulars: Sheet 2 of Exhibit 1 shows a roof over the third floor, sheet 3 shows no roof. The details on sheet 5 of Petitioner's Exhibit 1 related to the girder layout indicated glue laminated wood beams with insufficient notes to guide the contractor. The stairs of the south elevation were shown in two locations and did not show proper detail to show attachment to the building, nor that they met life safety standards. Sheet 5 of Petitioner's Exhibit 1, according to Mr. Power, shows a connection of the glued laminated wood member to a girder which was structurally inadequate because of the type and manner of bolting. The plans contained in Petitioner's Exhibit 1 used to obtain the building permit were somewhat confusing because certain irrelevant notes were written on the right hand side of sheet 1 of those plans. The piling construction notes, according to Mr. Power, called for 8 X 8 square pilings or 8 inch round marine treated pilings, but the drawing showed 12 inch round pilings. Sheet 6 of Petitioner's Exhibit 1 is confusing in that it is unclear whether it should be applied to the second or third floor, or just one of those two floors because the sheet specifies metal stud walls but does not indicate the gauge or size of the metal studs, nor did Mr. Power find the details sufficient to show how the walls should be framed at the top under the second floor trusses. Petitioner's Exhibit 1 allegedly shows insufficient detail with regarding to flashing and, finally, Mr. Power opined that there was not proper specification with regard to attachment of sheet metal to an overhang. Mr. Power's testimony was directed to Petitioner's Exhibit 1, the initial preliminary plans submitted for purposes of obtaining the building permit. Although building permit submittal plans should depict sufficient detail to show that a safely constructed building will result which will comply with appropriate building codes, it is not expected, as Mr. Pybus demonstrated, that all details be shown, especially in this case where certain planning details are appropriately and legally left to the designing and building performance of licensed trade contractors for the electrical, plumbing, and HVAC aspects of the building. Mr. Power's testimony does not demonstrate that the plans in Petitioner's Exhibit 1 would not have resulted in a safely constructed building which could comply with the building codes. In any event, the as-built set of plans drawn and designed by the Respondent (Petitioner's Exhibit 8), coupled with Respondent's unrefuted testimony, shows that these alleged deficiencies did not exist or had been adequately depicted in the as-built plans. The alleged improper connection of the glue lamented wood members to girders was actually demonstrated by the Respondent's testimony to be structurally adequate and in accordance with good, safe engineering practices. Concerning the alleged life safety standard violations regarding the stairs, Mr. Power acknowledged he had no architectural expertise, and was not qualified to render such an opinion, and the Respondent's case in chief shows that there was a change order regarding the stairs which legitimately accounts for the two different locations shown. Further, concerning the piling size complaint of Mr. Power, the Respondent demonstrated that the 8 inch sectional dimension of the pilings was the minimum diameter specification, which becomes obvious when it is taken into account that the drawing showed 12 inch round pilings. Accordingly this aspect of Mr. Power's criticism is invalid and is not indicative of negligence in the practice of engineering. The matters concerning the gauge or size of metal stud walls, the flashing, the depiction of roofs for the second and third floors, and the attachment of sheet metal to the overhang involved structural changes made during the course of construction as the result of legitimate agreements between the Respondent and the owner, as well as apparent deficiencies which were actually corrected on the final set of signed and sealed plans. Accordingly, these criticisms from Mr. Power do not reflect inadequacies or negligence in the practice of engineering in this regard either. Further, although Mr. Power expressed criticism concerning non- compliance with the statutory requirement for the drawings to be signed and sealed by the Respondent engineer, on cross examination he acknowledged that the Respondent had- in fact, attached to his final plans a cover letter and an index which had been signed and sealed with the appropriate raised seal and that each sheet of the drawing incorporated under that cover letter by reference was, in turn, appropriately identified by a stamped, red ink seal. Thus, the final plans were appropriately signed and sealed. Finally, it should be pointed out that none of the expert witnesses presented by the Petitioner had viewed the structure involved and none was able to testify competently that the structure had not, in fact, been finally designed, in the final plans, and constructed in a manner which would result in an improperly constructed, unsafe building. The Respondent presented the testimony of Mr. James Carlton, one of the owners of the building. Mr. Carlton established that he retained the Respondent to perform engineering services and that he did not want or need an architect because he had already conceived the architectural design of the building based upon his experience in the restaurant business. Mr. Carlton established that he was satisfied with the services provided by the Respondent and described his close cooperation with him and his supervision of the construction as very satisfactory. In fact, Mr. Carlton described the Respondent as working late at night seven days a week and always readily responding if changes were needed or desired by the owner or the contractors. Mr. Carlton described in detail the structural soundness of the building, even when subjected to 80 MPH winds and the weight and movement of crowds involving hundreds of people, which corroborated the Respondent's own testimony regarding the substantial structural soundness of the resulting building. The Respondent also presented the testimony of Henry Skipper, the contractor who actually constructed the building. Mr. Skipper confirmed that the plans provided adequate guidance for construction and for the work which was to be actually performed by licensed subcontractors in the trades of mechanical, electrical, plumbing, and HVAC. Mr. Skipper corroborated the fact that the Respondent was readily available to assist the contractors and subcontractors and the owner and to ensure that the building was properly constructed at all stages. Mr. Skipper found that the Respondent's plans contained the appropriate amount of detail treatment which he was accustomed to encountering in the preparation and use of building plans in the Bay County construction industry over a period of many years. Mr. Skipper's testimony appearing at pages 110 through 120 of the transcript specifically refutes the claims by Petitioner's witnesses concerning the adequacy of the design or construction of the stairs, the exterior walls, the glue--lam beams, the metal roofing and sheet metal detail, the perimeter walls, and the electrical, mechanical, plumbing, and HVAC aspects of the project. His testimony is accepted. Respondent testified in his own behalf and described his extensive experience as a professional engineer. In refuting the Petitioner's claims that he had worked outside his training and experience in terms of mechanical and electrical engineering, he established that he has many years of experience, derived from the nuclear power industry primarily, as well as to some extent in the sanitary sewer engineering design field by which he acquired extensive expertise in electrical mechanical, as well as structural engineering design. He is a licensed professional engineer in Alabama, Georgia, and Florida, and has been certified by the State of Florida as a Designated, Threshold Engineering Inspector. He has been approved for state employment as a professional engineer-mechanical III and a professional engineer-electrical I. His testimony appearing at pages 147-160 of the transcript together with the testimony of Mr. Skipper, the contractor, and the owner, Mr. Carlton, refutes the Petitioner's criticism concerning his design of the HVAC, plumbing, electrical, and structural aspects of the bui1ding. The Respondent established, in fact, that his design of the laminated beams and the method of connection of them, in fact, exceeded the recognized engineering and structural design requirements. Although various of the Petitioner's witnesses, as well as the Respondent in his testimony, established that sufficient detail concerning the mechanical, electrical, HVAC, and plumbing portions of the project were depicted on the plans so that appropriately licensed trade contractors practicing in those fields of contracting could do the final design and installation of those aspects of the project, the Respondent did not refute the showing by the Petitioner's witnesses that, as to the electrical equipment and service design portion of the project, the Respondent failed to properly note on his plans that flexibility for appropriate design and installation of the electrical segment of the project was being left to the licensed electrical subcontractor. In this regard then, it was established that the Respondent was negligent in the practice of engineering. It was not established that the Respondent engaged in any fraud or misconduct in the practice of engineering however, nor that he practiced architecture beyond the purview of his engineering licensure, in more than an incidental way.
