The Issue It is necessary to resolve the following issues in this proceeding: Whether Mr. Taft violated Section 471.025(3), F.S. and thereby violated Section 471.033(1)(a), F.S., by signing and sealing plans depicting work that he was not licensed nor qualified to perform; Whether he violated Section 471.033(1)(j), F.S., by signing and sealing plans that had not been prepared by him or under his supervision, direction or control; and Whether he violated Section 471.033(1)(g), F.S., by misconduct in the practice of engineering for the same acts alleged in a) and b), above.
Findings Of Fact Barrett L. Taft, P. E. has been licensed in the State of Florida as a professional engineer since 1968, holding license number PE 0013208. Mr. Taft graduated from the Massachusetts Institute of Technology in 1940 with a degree in metallurgical engineering. For the first 27 years he practiced mostly metallurgical engineering, with some, but admittedly very little building experience. After moving to Florida he took the engineers' exam in metallurgical engineering and was licensed. Since being licensed in Florida, he has worked as a sole practitioner in the Maitland-Central Florida area. His primary business activity since 1968 has been the operation of a metal die casting business with a die casting machine that he invented and patented. The contractor who built Taft's plant in Casselberry, a pre-engineered metal building, asked Taft to help him work on foundations for metal buildings. In this way Taft started doing building projects, primarily metal buildings. Harvey Spears was one of the contractors Taft worked with. Spears is a licensed contractor who owns Spears General Contractors, Inc. in Eustis, Florida. J. C. Woliver is an employee of Spears, Inc. He is a draftsman and prepares estimates for the company. Neither he, nor Harvey Spears, nor the company are licensed in architecture or engineering. Sometime in 1985 and 1986, J. C. Woliver prepared drawings for two buildings to be constructed in Eustis by Spears. One was a 2,567 square foot insurance company building, the Talmadge Building; the other was a small strip shopping plaza, Bay Street Plaza. After the drawings were completed and approved by the owners, Harvey Spears took them to Taft's office for his review. Taft reviewed and sealed the drawings. Building permits were obtained; both projects were constructed and they are now occupied by the owners' businesses. Barrett Taft never met with the owners prior to sealing the drawings, nor did he ever meet or talk with J. C. Woliver during preparation of the drawings. Neither Woliver nor Spears were employed by Barrett Taft and he had no supervisory relationship with these individuals. Taft did not do engineering calculations for these two projects, as in his view they were very simple. He reviewed the drawings prepared by Woliver and checked them against the standard building code. No changes were made prior to Taft's application of his seal and return of the drawings to Spears. The plans for the Bay Street Plaza were signed, dated and sealed by Mr. Taft in his capacity as a professional engineer on August 5, 1985. The Talmadge Building plans were signed, dated and sealed by Mr. Taft in his capacity as a professional engineer on May 6, 1986. The drawings sealed by Taft for both projects are very sketchy and lack essential detail. No engineering calculations are included, and it is impossible to review the drawings to determine compliance with fire and life- safety codes. Because these buildings are used and inhabited by the public, they should have been designed by an architect. Architects, not engineers, are trained and tested in the requirements of the various building codes, including the fire and life-safety codes. Barrett Taft is not a licensed architect. Taft argues that he was providing a service to the public and the customers are satisfied. His arrangement with Harvey Spears with regard to sealing Woliver's drawings was that he would not handle anything complicated and the contractor would follow the building code. He felt that the buildings were little more than house-like structures which would not require an engineer's calculations or a seal. Barrett Taft was disciplined previously by the Board of Professional Engineers. In an Order dated May 25, 1984, and amended July 31, 1984, the Board imposed a fine of $1,000.00 and one year probation. The order was entered after an informal hearing requested by Mr. Taft. The Board found in that case (DPR #0034220) that Mr. Taft was guilty of negligence; that he lacked training, experience and education to perform the services provided; and that he affixed his seal and signature to drawings that were not prepared by him or under his responsible supervision or direction.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a final order be entered finding Barrett L. Taft, P.E., guilty of violations of subsections 471.025(3), 471.033(1)(a), (g) and (j), and imposing the following discipline. Reprimand. (b) $1,000.00 fine. One year suspension. Two years probation, following suspension, under conditions to be determined by the Board, relating to limiting Mr. Taft's practice to a field in which he is qualified to work and limiting the use of his seal to his own work. DONE and RECOMMENDED this 4th day of February, 1988, in Tallahassee, Florida. MARY CLARK 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 day of February, 1988. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Barrett L. Taft 2940 Cove Trail Maitland, Florida 32571 Allen R. Smith, Jr. Executive Director Board of Professional Engineers Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether Petitioner should be granted additional credit for one or more examination questions answered by him during the June 1990 Certified Building Contractor Examination.
Findings Of Fact Petitioner sat for the June 1990 certified building contractor examination. On Part II, he received a score of 68.0. A minimum passing score is 69.01. On Part III, he received a score of 71.00. Minimum passing score is 69.01. Petitioner had previously passed Part I of the exam. Petitioner initially challenged question numbers 6, 13 and 14. Upon completion of the testimony, Petitioner withdrew his challenges to question numbers 13 and 14. The National Assessment Institute prepares licensure examinations for building contractors in the State of Florida under authority of the Office of Examination Services, Department of Professional Regulation. The Institute prepared question number 6 for the certified building contractor examination administered on June 26 and 27, 1990. Question number 6 tested the candidate's ability to calculate the time necessary for a crew to excavate, form and pour concrete for a reinforced concrete curb and gutter in a parking area and have it inspected. The candidate was asked to select the earliest date that concrete can be scheduled to be poured. Four dates were given: (A) June 11, (B) June 13, (C) June 15, and (D) June 18, 1990. The Institute determined that the only correct answer was: (D) June 18, 1990. The Petitioner selected: (C) June 15, 1990. Part of the instructions to the examination candidates stated: "The inspection request will NOT be called in the day the work is completed." The evidence was undisputed that preliminary calculations indicate with regard to question 6 the mathematical approach to the solution demonstrates that the work will take nine days (rounded up), starting June 1 and completed on June 13, and, therefore, the inspection is to be called in on Thursday, June 14, 1990. The third paragraph of the question states: Inspections have been taking one day from the time the inspection is called in until the time the inspection is completed. Inspections can NOT be called in or performed on Saturdays or Sundays." The first sentence of the fourth paragraph states: "The concrete is to be placed the day after the inspection is completed." (Emphasis supplied) The Department's position is that the plain language of the question indicates that it would take one day or 24 hours from the date the request for inspection was called in (June 14) until the inspection was completed which would be June 15. Since the instructions were clear that the concrete cannot be poured on the same day the inspection is completed or on Saturdays or Sundays, then the earliest date that the concrete can be scheduled is Monday, June 18, 1990, or answer (D). The Petitioner argues that it is not uncommon in the construction industry to "call in" an inspection in the morning and have it completed on the same date (in one day). Therefore, since it is undisputed that the inspection is to be "called in" on Thursday, June 14, that it was reasonable and logical for him to conclude that the inspection would also be completed the same date. Since the question instructed that the concrete is to be placed the day after the inspection is completed, he selected answer (C), June 15, 1990 (a Friday) as the correct answer. The Department does not dispute that it is common practice in the construction industry for an inspection to be called for and completed in one day. The Department's determination that answer (D) was the only appropriate answer was arbitrary and unreasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner be awarded four points for his answer to question number 6 of Part II of the Certified Building Contractor examination for June, 1990. Petitioner be awarded a passing grade for Parts II and III of the examination. DONE AND ENTERED this 28th day of March, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,6,7,10 Rejected as argument: paragraphs 8,9 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,2,3(included in Preliminary Statement), 4(in part),5. Rejected: paragraph 4(in part, as against the greater weight of the evidence and argument), 5 and 6(challenge withdrawn) Copies furnished: George Solar 1302 West Adalee Street Tampa, Florida Vytas J. Urba, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this case is whether Respondent's certification as an aluminum contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the matter in issue herein, the Pinellas County Construction Licensing Board was the county agency responsible for the regulation of construction industry professionals and contractors operating in Pinellas County, Florida. Respondent was certified as an aluminum contractor and was issued license C-3664. He was, at the time in issue, the qualifying contractor of record for Phoenix Aluminum, Inc. Phoenix Aluminum, Inc. and Ace Aluminum, Inc. are parts of the same entity and are operated by the same individuals. On December 1, 1993, Harvey W. Heimann, the owner of a town house located at 1802 Largo Vista Boulevard, in Largo, Florida, orally agreed with Willard Hill, the reputed representative of Ace Aluminum, to have an aluminum enclosure placed on the rear of his home. Mr. Hill initially had solicited the Heimanns during construction of the home, indicating Ace had done other work in the area. When the parties agreed on a price Mr. Hill indicated that construction would start as soon as the required permit could be obtained, and the job would be completed as soon as possible. No time period for construction was specified. When the job was completed, the Heimanns were not satisfied, feeling the workmanship was poor and the job was esthetically unsatisfactory. They complained numerous times either to Willard Hill or to a Mr. Smart, both reputed to be employees of the company, who promised to come and look the work over. No satisfactory corrections were made by the contractor, however. Nonetheless, an invoice was issued on January 21, 1994 in the amount of $1,720.00, and the Heimanns paid Ace Aluminum the sum of $1,360.00 by check on April 23, 1994, after some corrective work was accomplished. This check was subsequently endorsed and paid to Ace. In November 1995 a strong wind hit the Largo area during which some of the roof panels on the Heimanns' aluminum room installed by Ace/Phoenix blew off. Mrs. Heimann subsequently spoke by telephone with someone at the company office but got no satisfaction, and in February, contacted another aluminum contractor, Mr. Howe, to give them an estimate to repair the damage. When Mr. Howe found out that the installation was so recent, he refused to do any corrective work on it until he determined if the work had been both permitted and finally inspected. He found that a permit had been pulled for the installation. He then advised the owners to contact the original installer. The Heimanns wanted nothing more to do with Ace/Phoenix and on April 5, 1996, Mr. Howe pulled a permit to do the necessary work. The work, which also required the replacement of the screws affixing the base aluminum to the concrete with larger screws and a deeper insertion into the concrete, was completed by April 10, 1996, after which Howe arranged for the job to be properly inspected. The work Howe did passed inspection. According to David Livesay, the chief building inspector for Pinellas County, a permit for the project in issue was pulled by Willard Hill on December 9, 1993. Building Department records also show that on January 24, 1994, a frame inspection was done of the project which resulted in the issuance of a yellow tag, denoting a failure, because of inadequate base anchoring. The actual inspection form reads, "Called in for 'building inspection' YTAG: 9:50AM Need verification of base fastening into slab, Recall J K." J K appears to be the initials of the inspector who did the inspection. On January 25, 1994, a second inspection was done and again the project was rejected because of the base fasteners. That inspection report reads, "9:30 AM Recheck same as previous insp." Both a yellow tag and a red tag mean that a code violation exists. The difference between the two is that while a red tag requires payment of a fee, a yellow tag does not. Notwithstanding the deficiency found in the first inspection was not corrected by Respondent or his company, no further action was taken until March 21, 1996, when Mr. Livesay filed a citation against the Respondent for "construction not to code" based on the work done at the subject address. A court date was set for April 5, 1996, but on March 23, 1996, Respondent appeared in court, pleaded guilty to the charge and paid a fine of $155.00. According to Mr. Livesay, normal procedure is for the contractor who has completed work which requires inspection to call in to have the inspection made. There is no indication here that this was not done. The problem here lies in the failure to make the necessary corrections disclosed by the inspection. Respondent, Bret Hill, admits that he is the individual whose license/certification was used to qualify Phoenix Aluminum, Inc., the company which did the work in issue. However, he denies having ever met or dealt with the Heimanns and this appears to be the case. Respondent's father, Willard Hill, indicates it is he who, as salesman for Ace/Phoenix, dealt with the Heimanns and pulled the permit for the required construction. He is also the individual who did the installation work and who called for the inspection when the work was completed. When the first inspection resulted in the issuance of a yellow tag, he called, the next day, for a second inspection. Mr. W. Hill insists that the first yellow tag resulted from the inspector's inability to determine the size of the lag bolt used to fasten the aluminum to the concrete base. He also asserts that the day after the first inspection he brought the appropriate bolts to the site for the inspector's review, but the inspector did not see them and issued a second yellow tag. Nonetheless, Hill asserts, the bolts used were proper for the job and the room built according to the specifications submitted to the building department by Phoenix. The prime contractor for the housing project was Geiger Enterprises, and it was Geiger who hired Phoenix to do the screening work. Both Ace Aluminum and Phoenix Aluminum were, Hill indicates, owned by a Mr. Brabham, with Bret Hill serving only as the qualifying licensee. Taking into account all the above, the ultimate finding is that the work was done by Phoenix Aluminum, Inc., based on a permit issued to Phoenix; it was found to be inadequate on an inspection called for by Phoenix, and the identified deficiency was not shown to be corrected.
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 finding Respondent, Bret Hill, guilty of misconduct in the practice of contracting, and imposing an administrative fine of $250.00. DONE and ENTERED this 13th day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 24643-5116 Bret Hill 4904 Headland Hills Avenue Tampa, Florida 33625 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996.
Findings Of Fact The Respondent, Clarence Kimball, is a professional engineer licensed to practice engineering in the State of Florida, holding license number PE 0009427. The Petitioner is an agency of the State of Florida charged with enforcing standards and principles of professional engineering practice imposed upon licensed professional engineers in Florida and enumerated in Chapter 471, Florida Statutes (1981), and with monitoring and regulating the licensure status of professional engineers in Florida. The Respondent was retained to draft engineering design drawings for a multi-family residential project known as Westwind Villas, to be constructed in Lee County, Florida. The project consisted of two two (2) story buildings each containing four residential units. The drawings depict the first floor of the two buildings as built in place out of concrete block. The second floor of the building as depicted in the drawings, would be built of prefabricated modular units mounted on top of the concrete block, first floor construction. The purpose of these engineering drawings was to define the scope of the work to be done by the building contractor, who would do the actual construction, and to define the materials to be used by the contractor and the manner in which those materials were to be assembled. These permit drawings contain an inconsistency as to which way the buildings are to face. Sheet 1 of the drawings depicts a plot plan and drainage plan for the Westwind Villas. That sheet indicates that the units are all facing west. Sheet 2 of the drawings also shows the units facing west. Sheet 5, however, depicts the units as both facing to the north. This fact was established by Petitioner and indeed, was acknowledged by the Respondent in his testimony. Sheet 2 depicts the elevation and design of the foundation of both buildings. There are a number of areas of the foundation design where the drawing depicts an increase in the width of the concrete slab involved, but with no indication of the Respondent's intent as to what the dimensions of the widened portion of the slab were to be. The Respondent acknowledged that the failure to indicate the width of the slab as widened with regard to the drawing on Sheet 2, was a mistake on his part. Sheet 2 also contains a note that says "number 5 bars in the concrete fill are indicated by a little square." Indeed there are numerous small squares on the foundation plan indicating that number 5 reinforcing bars are erroneously sticking out of the floor of the structure. The Respondent admitted that the filled squares indicate reinforcing bars out in the floor of the structure, as opposed to the foundation, and that those are mistakes. Sheet 2 also provides no indication or direction to the building contractor as to the degree of compaction of soil required, the grade of lumber to be used, nor the grade and type of reinforcing steel to be used in the concrete portion of the construction. Sheet 4 of the permit drawings contains details and cross sections. Section AA calls for an 8" x 16" concrete tie beam and in depicting the typical cross section of that same beam, the Respondent shows it as an 8" x 12" concrete tie beam, which would have less "shear load "or weight bearing ability. Section CC of Sheet 4 illustrates a section of the wall for which the Respondent indicates that a single wall is to be constructed of interior type wall materials. Due to the offset of the two units in their alignment arrangement with each other however, there should have been two "stud walls" designed with the exterior portions of those walls constructed out of exterior materials, since, as designed in an offset pattern, portions of the walls would indeed be exterior walls. The Respondent acknowledged here again that he should have designed the two walls providing for materials suitable for exterior wall construction. As Respondent admits, Section CC also does not indicate how the contractor is to anchor prefabricated units consisting of the second floor structure, to the beams on which they are to rest. There is no indication as to what material is to be used for the attic floor of the structures. Section 5 depicts cross sections, trusses and framing details. There is inconsistency between the elevation depicted on Sheet 2 and the roof rafter plans shown on Sheet 5. The roof after plan indicates that the prefabricated second story unit is 14 feet wide without overhang on the sides. The elevation drawing, however, shows an overhang of 1' 4" on each side. There is thus an inconsistency there, and also an inconsistency between the ceiling plan above the second floor and the truss detail both of which are shown in Sheet 5. The ceiling plan indicates that the ceiling joists are to be 2" x 6". In truss detail "A" the ceiling joists are shown to be 2" x 8". Additionally, the 2" x 6" ceiling joists are overstressed in that the attic was designed to have a pull down staircase and thus is clearly intended for storage use. The standard building code in effect for this structure, requires that an attic space to be used for storage should be designed with a live load capacity of thirty pounds per square foot. The Respondent designed this attic space with a live load capacity of fifteen pounds per square foot, and thus has failed to meet building code standards. Sheet 5 contains illustrations of "Sling and Jack Points" thus showing a method for lifting the fabricated units onto the concrete block first floor structure. The owner of the building ultimately decided not to use this method for lifting the prefabricated units atop the first floor, but the Respondent failed to notify the Lee County Building Department of this decision and did not file a revised sheet showing the elimination of the use of sling and jack points for lifting in the design. The drawing with regard to placement of the second floor units on top of the first floor concrete block structure was incomplete. The Respondent referred to a temporary support beam to be used during the lifting operation and indicated the specification for that beam "as depicted by reference on another sheet of the drawings. Respondent, however, did not indicate what other sheet the contractor was to refer to. The permit drawings for this project, signed and sealed by Respondent, are to some extent an amalgamation of drawings from other previously designed projects, some of which are inconsistent when an attempt is made to combine the drawings into a single new design. There are a number of construction problems the Respondent failed to resolve with his drawings, and while many of the errors and inconsistencies standing alone would not be significant, the sum total of all the inconsistencies, ambiguities and inaccuracies in the drawings result in a final product which would, if used to construct the building, result in a poorly constructed, and possibly unsafe building, because of the substandard and ambiguous nature of the drawings at issue.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Board of Professional Engineers suspending the license of Clarence Kimball, the Respondent herein, for a period of four years, provided however, that if, within one year from the date of such final order, the Respondent, through enrollment and successful completion of appropriate continuing engineering educational courses, can establish that his engineering skills have been remediated and rehabilitated, then the remaining three years of suspension should be abated and his licensure reinstated to its former status. DONE and ENTERED this 27th day of June, 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32391 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of June, 1984.
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.
The Issue The issues in these cases are whether the allegations of the administrative complaints are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact The Petitioner is charged with responsibility for regulation of the practice of engineering within the State of Florida. At all times material to these cases, the Respondent has been licensed by the State of Florida as a professional engineer holding license PE40904. At the hearing, the Petitioner presented the testimony of Joseph Berryman, P.E., a professional engineer licensed by the State of Florida. Mr. Berryman was accepted as an expert in structural engineering design, including aluminum structure design. Mr. Berryman's testimony regarding deficiencies in the Respondent's design of the projects referenced herein was clear and persuasive. In response, the Respondent testified that the referenced projects met applicable professional standards, including load and stress standards. The Respondent's primary engineering experience has apparently been in the realm of civil, not structural, engineering. According to Mr. Berryman, the Respondent's calculations included material errors, reflected structural elements other than those identified in the design documents, and revealed misunderstanding and misapplication of engineering precepts. The Respondent's testimony has been rejected. Mr. Berryman's testimony has been credited. DOAH Case No. 12-1635PL (Del Vecchio) On October 7, 2011, the Respondent signed, sealed, and dated a one-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at "3611 Throle" in Rockledge, Florida (the "Del Vecchio" project). The document failed to include elements and information required by the Florida Building Code (FBC) and by the Petitioner's rules. The document failed to identify the height of the mansard rise, failed to detail a proper end connection between diagonal roof bracing and the frame of the structure, failed to identify the size of the "K-bracing" elements included in the design, failed to indicate the size of the corner columns or to show a corner column section, and referenced a design element that had been superseded elsewhere in the document. Additionally, the frame spacing dimensions set forth on the document failed to conform to the width of the proposed structure. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the Aluminum Design Manual (ADM). The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed in the document for compliance with the standard set forth in the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, and purlins) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed by the Respondent has been fully credited. The Respondent's preparation of the design document for the Del Vecchio project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards. DOAH Case No. 12-1636PL (Nunez) On September 20, 2011, the Respondent signed, sealed, and dated a three-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at 4128 Southwest 102nd Lane Road, in Ocala, Florida (the "Nunez" project). The document failed to include elements and information required by the FBC and by the Petitioner's rules. The document failed to identify the height of the mansard rise and failed to detail a proper end connection between diagonal roof bracing and the frame of the structure. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the ADM. The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed in the document for compliance with the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, purlins, cable bracing, anchor bolts, and gusset plates used in a roof beam splice) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed in the Respondent's document has been fully credited. The Respondent's preparation of the design document for the Nunez project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards. DOAH Case No. 12-1637PL (Dunaway) On September 8, 2011, the Respondent signed, sealed, and dated a three-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at 8538 Southwest 135th Street, in Ocala, Florida (the "Dunaway" project). The document failed to include elements and information required by the FBC and by the Petitioner's rules. The document failed to identify the height of the gable rise, failed to detail a proper end connection between diagonal roof bracing and the frame of the structure, failed to indicate the size of the corner columns or to show a corner column section, and failed to identity the metal alloy of a clip used at a detailed shoulder connection. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the ADM. The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed by the Respondent's design document using the information set forth in the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, and shoulder connection fasteners) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed in the Respondent's document has been fully credited. The Respondent's preparation of the design document for the Dunaway project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order reprimanding the Respondent, placing the Respondent on probation for a period of two years under terms and conditions deemed appropriate by the Petitioner, and imposing a fine of $6,000 against the Respondent. Additionally, the final order should prohibit the Respondent from the practice of structural engineering until the Respondent submits to the Petitioner proof of his successful completion of an appropriate examination to be designated by the Petitioner. DONE AND ENTERED this 29th day of August, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 29th day of August, 2012. COPIES FURNISHED: John Jefferson Rimes, III, Esquire Florida Engineers Management Corp. 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303 Scott Guy Campbell Apartment 805 250 58th Street, North St. Petersburg, Florida 33710 Zana Raybon, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303-5268 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
