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 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.
The Issue The issue in this case is whether Petitioner is entitled to credit for answers to any one or all of five challenged questions on the structural I engineering examination that Petitioner took in April 1997 (the "structural engineering examination").
Findings Of Fact Petitioner took the structural engineering examination given in April 1997. Respondent administered the examination. The minimum passing score for the structural engineering examination is 70. Respondent earned a score of 69. By Examination Grade Report dated July 29, 1997, Respondent notified Petitioner that he had failed the structural engineering examination. Petitioner requested an administrative hearing. Petitioner's test results were re-scored by the National Council of Examiners for Engineering and Surveying ("NCEES"). The re-score did not increase Petitioner's original score. Credit for an answer to one additional question will result in a score of 70 on examination. Petitioner challenges questions 270-273 on the morning part of the exam and question 572 on the afternoon part of the exam. The maximum score available for question 270 is 10 points. Petitioner received eight points. Petitioner is not entitled to any additional points for question 270. Petitioner incorrectly calculated the point where "stirrups may be discontinued." The maximum score available for question 271 is 10 points. Petitioner received two points. Petitioner is not entitled to any additional points for question 271. Petitioner did not complete the procedure for two of the required items. Petitioner completed only two items in question 271. He received a correct score of two points because he incorrectly calculated the point where "stirrups may be discontinued." The maximum score available for question 272 is 10 points. Petitioner received two points. Petitioner is not entitled to any additional points for question 272. Petitioner did not provide a correct analysis of the "forces perpendicular and parallel to the grain" or "determine the allowable force at an angle to the grain." The maximum score available for question 273 is 10 points. Petitioner received two points. Petitioner is not entitled to any additional points for question 273. A higher score would require Petitioner to calculate two items correctly. Petitioner calculated only one item correctly. Question 572 has two parts. Part 2 is a multiple choice format. The correct answer to Part 2 of Question 572 is answer "C," or 1.25. Petitioner chose answer "B," or 2.25. Petitioner incorrectly assumed that the structure was a mixed steel/concrete frame. If Petitioner's assumption had been correct, then answer "B," or 2.25, would have been the correct answer. Petitioner failed to show that Respondent did not utilize the scoring plan correctly. The examination provided enough information for a candidate for licensure to answer the problems correctly. The examination was properly designed to test a candidate's competency. The challenged questions are questions that a candidate for licensure should be able to answer correctly.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's challenge to questions 270-273 and 572. DONE AND ENTERED this 6th day of May, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997. COPIES FURNISHED: Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792 R. Beth Atchison Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Carl A. Brown, pro se 9313 Sonoma Drive Orlando, Florida 32825 Angel Gonzalez, Executive Director Department of Business and Professional Regulation Division of Licensing Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is a candidate for licensure as a professional engineer. Petitioner took the licensure examination in October, 1992, and received an overall score of 68.10. The minimum passing score for the exam was 70. The examination used by the Department is a nationally recognized test administered and graded by the National Council of Examiners for Engineering and Surveying (NCEES). The scoring plan utilized by NCEES in this case provided, in pertinent part, that the score of 4 would be given where the applicant's response showed more than rudimentary knowledge but was insufficient to demonstrate competence. Petitioner received the score of 4 on problem #120 and felt his answer should have received a higher grade. To receive a score of 6 on problem #120, Petitioner's solution would have shown minimum competence by indicating the required volume of solids taken as the required volume of fill with all other analysis and computations being correct. According to the scoring plan, only "modest" errors in cost analysis or volume analysis computations are permitted to receive a grade of 6. Petitioner admitted that his calculation of volume on problem #120 was incorrect, but felt that since the error was only 10-15 percent, such error was reasonable given that he had correctly analyzed the majority of the problem. Petitioner's calculations for problem #120 were approximately 5900 cubic yards from the correct answer. Since Petitioner's volume calculations were incorrect, no credit was given for the cost analysis. Petitioner's error was not a "modest" miscalculation as set forth by the scoring plan.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Board of Professional Engineers, enter a final order denying Petitioner's challenge to the professional engineer examination administered in October, 1992. DONE AND RECOMMENDED this 19th day of August, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2652 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraph a) is rejected as contrary to the weight of the evidence. Paragraph b) is rejected as contrary to the weight of the evidence. Paragraph c) is rejected as irrelevant. Paragraph d) is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1 through 5 are accepted. COPIES FURNISHED: Ali Khalilahmadi 12755 S.W. 60 Lane Miami, Florida 33183 Vytas J. Urba Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0755
The Issue The issue in this proceeding is whether Respondent's engineering license should be disciplined for alleged violations of Chapter 471, Florida Statutes.
Findings Of Fact Michael V. Carr, P.E. is a licensed professional engineer in the State of Florida, holding license number PE0026675. He has been engaged in the practice of engineering for more than 15 years. Mr. Carr's area of expertise is in civil and structural engineering. He is not experienced in electrical or mechanical engineering. In 1989, Mr. Carr was employed as a full-time engineer and construction project manager by a local development and construction company. He also operated, on a part-time basis, an engineering business. The purpose of his part-time business was to offer engineering services to people who are experienced in the construction industry or are working with someone who is experienced in the construction industry and have to varying degrees developed their own plans. Respondent also would serve as the construction manager on those projects. During 1989, Respondent performed engineering services on four buildings owned by four different owners. All four buildings, involved relatively simple construction. Three of the buildings, Dr. Zummarraga's office, the Raulerson/Liberty National building, and Bay Podiatry Center, were designs comparable to residential structures. The Eleventh Street Office Park, while a larger structure, was a shell building and a simple structure, as well. Respondent was not retained to provide engineering for the construction of the interior of the Eleventh Street Office Park. In regards to all four buildings, the Respondent was not retained to provide plumbing, electrical or mechanical engineering services. Those items were left to the respective trades involved in the construction of the project. The limited plans submitted for the plumbing, electrical and mechanical aspects of the four buildings met the standard of practice in the Bay County area and were sufficiently complete for the various trades to perform its respective part of each project. Moreover, the simplicity of the construction plans for these four buildings meant that standard construction methods are provided in the Standard Building Code and/or are known in the industry. Such standard construction methods include detail on roof systems, spacing and connections, as well as live load requirements. Therefore, not as much detail needed to be provided on the plans for these projects. It was standard engineering practice in the Bay County area not to include such detail if it was adequately covered in the building code. In each instance, the owners of the buildings contacted Respondent to perform limited engineering services and to act as the construction manager on each project. Except for Mr. Raulerson, each owner had, prior to the time Respondent was hired, worked out some rough plans with a person qualified to create such plans and had a general idea of what type of building they wanted. Mr. Raulerson had drafted a fairly complete set of building plans. The goal of each owner of the four projects was to obtain a set of plans from what the owner already had developed which would at least minimally meet the local building code requirements sufficiently to allow a building permit to be issued for the construction project. In each instance, the Respondent's plans were submitted to the local building code enforcement agency which reviewed and accepted the plans. A building permit was issued for each building project. During the construction of each building, Respondent provided engineering inspections on each project. The plans submitted to the Bay County building department were not as-built plans and were never intended to be 100% complete plans since several of the owners had not made final decisions on a number of details such as roof line or plumbing facilities. 1/ Such open-ended plans were justified by the specific circumstances of each case and the professional judgment of Respondent, especially since Respondent acted as the project manager of the construction project. For purposes of clarity the facts and circumstances surrounding each building and any violations of Chapter 471, Florida Statutes, in regards to each building will be outlined individually. No alleged violations of Chapter 471, Florida Statutes, were established by the evidence unless it is specifically noted below. Zummarraga Building The plans for the Zummarraga building were signed and sealed by Respondent on October 24, 1989. Dr. Zummarraga had contacted Rich Koehnemann of Koehnemann Construction Company to build an office building for him. Mr. Koehnemann sent the doctor to Jeff Robinson, a draftsman in the Bay County area, to work up a draft of the office plans the doctor desired. The doctor or Mr. Koehnemann gave Mr. Robinson a rough sketch of the office building. Mr. Robinson informed the doctor that a structural engineer would have to be involved since the County would require the plans to have the signature and seal of an architect or engineer in order to obtain a building permit. At that point, Respondent was retained to help develop a set of plans for Dr. Zummarraga. Mr. Carr was hired to draft plans for an office building. He was not hired by Dr. Zummarraga to design a building for a specific site. Therefore, no substantial site information, site work, grading or contouring details were provided on the plans for the Zummarraga project. By passing drafts of plans back and fort, a set of plans was devised by Mr. Robinson under the direct supervision and control of Respondent. Therefore, Respondent is not guilty of improperly affixing his seal to the plans for the Zummarraga project. Later, after the structure's plans were finalized, the contractor determined that a detention pond would have to be designed for the site and a DER permit obtained for the pond. Respondent was retained to design a detention pond for the site and worked with DER to meet its extensive permitting requirements for such a pond. See Chapter 17-4, 17-25 and 17-512, Florida Administrative Code. That design was submitted to DER and a permit was issued for the detention pond. The original unsealed set of plans was amended for the building department. The specific details of the more rigid DER requirements, such as site work, grading and contouring, were not included on the plans filed with the building department and the owner did not contract with Respondent to include redundant detail on the building department's plans. Essentially, the building department's plans reflected the location of the detention pond and the area of the wetlands on the property which were subject to DER jurisdiction. Additionally, the plans contained some specifications which guided the contractor on pond requirements and in grading and contouring the site. These notes in conjunction with the DER permit requirements were sufficient to accomplish the building of the detention pond. Therefore, the desire of the owner and the avoidance of unnecessarily redundant detail between the DER permit and the building department's plans justified the lack of any extensive site work detail on the building department's set of plans for the Zummarraga project. The plans devised by Mr. Carr did not contain any architectural work which was not incidental to the engineering work he performed. 2/ Therefore, Respondent is not guilty of improperly affixing his seal to plans depicting work outside his field or of practicing outside of his field. In every instance, the plans of Dr. Zummarraga's office building were of sufficient detail to meet the building department's requirements for the issuance of a building permit, to allow the contractor to construct the project according to the Standard Building Code and to obtain a certificate of occupancy from the building department. Obviously, on these facts, the plans met the standard of practice in the community for the engineering services Respondent was hired to perform. Moreover, the lack of code related, electrical or mechanical details was justified under the facts and circumstances of the Zummarraga project and it was well within the professional judgment of the Respondent to omit such details given the standards of practice in the Bay County area. Raulerson/Liberty National Building The plans for the Raulerson/Liberty National building were signed and sealed by Respondent on July 31, 1989. Mr. Raulerson is an experienced developer in the Bay County area and acts as a general contractor on his own projects. Prior to hiring Respondent, Mr. Raulerson had been working with a local draftsman and Liberty National's architect to create a set of plans for the construction of Liberty National's office building in Bay County. Mr. Raulerson contacted Respondent on the advice of Bayne Collins, a local architect. Mr. Collins advised Mr. Raulerson that his plans were complete and all he needed was an engineer to check the wind loads. 3/ Mr. Raulerson gave Respondent the plans he had developed in conjunction with Liberty National's architect. Mr. Raulerson asked Mr. Carr to go through the plans and do a structural analysis to make sure that wind load requirements were met, that the building was structurally sound and that the building met the requirements for issuance of a building permit. Mr. Carr reviewed the plans and determined that they were an excellent set of plans for a very simple, sound and over-designed structure. He calculated the wind loads for the building and completed a structural analysis of the building. He also made one minor correction to the plans. Mr. Carr thought it ridiculous to put Mr. Raulerson to the expense of copying the Liberty National plans and essentially adopted the plans as his own. In this case, the fact that the plans were not drawn under Respondent's supervision is immaterial since the specific circumstances of the project did not call for such supervision in that the plans were drafted by experienced individuals. The plans were under Respondent's control at the point in time he was hired by Mr. Raulerson and the plans submitted to him for his review and approval, disapproval or amendment. Since copying the plans would be an unnecessary duplication of effort and Respondent did in fact exercise control over the plans by reviewing them before he affixed his seal to them, Respondent is not guilty of improperly affixing his seal to construction plans. The Raulerson/Liberty National plans did not contain any architectural work which was not incidental to the engineering services he performed. Anything in the plans which may be construed as "architectural work" was requested and specified by the owner to be in the plans. Therefore, Respondent is not guilty of improperly affixing his seal to plans depicting work outside his field or of practicing outside his field. The plans did contain a roofing plan which called for pre-engineered trusses. The detail on the plan simply read "pre-engineered trusses." The plans did not contain any requirements relating to who was to design the pre- engineered trusses or requirements for structural submittals on the trusses. In the Bay county area "pre-engineered trusses" means trusses from Fagans, the local truss manufacturer. It is common knowledge, that Fagan's has a licensed engineer on staff who designs all of its pre-engineered trusses from the plans submitted to him. The pre-engineered trusses all have pre-construction documentation available. Also, submittals for the trusses accompany the trusses at the time of their delivery. With such knowledge, it is unnecessary to specify any more information or requirements regarding the truss manufacture on the Liberty National plans. Similarly it was unnecessary to detail that submittals be given to the engineer since such submittals accompanied the trusses. The absence of any more detail was justified by the specific circumstances of the Liberty National project and well within the professional judgment of the Respondent given the nature of the pre-engineered truss market in the Bay County area and the fact that Respondent was the construction manager on the project. As indicated, Respondent also acted as the construction project manager and would visit the construction site about once a week. At the point in time Mr. Raulerson was going to order the trusses, he decided to change the pitch of the roof, Mr. Raulerson did not advise Mr. Carr of his decision. Mr. Carr discovered Mr. Raulerson's change when he visited the construction site. Fortunately, Respondent had the project file with him. With the project file information and the submittals from the truss manufacturer, Respondent checked the load conditions for the changed pitch. No structural concerns were presented due to the change in pitch of the roof. The Liberty National plans were not amended because Mr. Raulerson did not contract for them to be amended. The plans were not required to be amended under Chapter 471, Florida Statutes. Respondent did not commit any violations of Chapter 471, Florida Statutes, in regards to his actions outlined above. Bay Podiatry Center The plans for the Bay Podiatry Center were signed and sealed by Respondent. However, the date the plans were signed and sealed was not included on the plans. It was inadvertently omitted by Respondent. The absence of the date is a de-minimis violation of Chapter 471, Florida Statues, and does not justify the imposition of any formal penalties. However, Respondent should be given a letter of guidance for the violation. Respondent was not brought into the Bay Podiatry Center project until the final draft of the plans was to be done. Up until that time, Dr. Wilkerson, the owner of the project, had worked up preliminary drafts of the project in conjunction with his contractor and a local draftsman. They had developed a building with an attached carport. Mr. Carr did work directly with the draftsman on the final plan. Therefore, the plans were created under the direct supervision and control of Respondent. Since Respondent supervised and controlled the finalization of the project's plans at the crucial time and since the people involved in drafting the plans did not need more supervision and control, Respondent is not guilty of improperly using his seal. There was no clear and convincing evidence which demonstrated that Respondent performed any architectural work which was not incidental to the engineering services he performed. At the time Dr. Wilkerson desired to begin construction and obtain a building permit, he had not decided on a final roofing system. Therefore, the final plans called for the use of pre-engineered trusses and did not have a great amount of detail on a roof framing plan. There was some detail provided on the page of the plans detailing the wall section of the building. This page provided sufficient detail for a competent contractor to construct the building according to code. In fact, the building was so constructed and a certificate of occupancy was issued for the building upon its completion. Again the trusses would come from Fagans. Petitioner did in fact review submittals from Fagan's truss engineer for the pre-engineered trusses used on the Bay Podiatry Center. Included in those submittals was a roofing plan in which the trusses were numbered to fit the sequence shown in the roofing plan. Respondent made sure the trusses and roof system were structurally sound. However, the owner did not contract with Respondent to amend the building department's plans. Chapter 471, Florida Statutes does not require such an amendment. Given the truss market in the Bay County area, the knowledge of Respondent regarding that market, the fact that a decision regarding a roof line had not been made when the plans were sealed, and that it was appropriate to leave such a decision for later in the construction process, no further detail was required in specifying the roof system for this project. No clear and convincing evidence was presented that demonstrated Respondent was negligent in his specifications on the roof system. The only exception to the above was that Respondent did not specify the material of the trusses over the carport. Such information is not supplied by the Code and therefore must be supplied by the engineer. The oversight was caught by the contractor when he was preparing to order the trusses. The contractor contacted Mr. Carr. Mr. Carr determined what the appropriate truss material should be and informed the contractor. The inadequacy of the plans was resolved in less than ten minutes. The omission of such a detail is negligent on the part of Respondent and is a violation of Chapter 471, Florida Statutes. However, on these facts, the omission of the detail is minor. Most of the light, plumbing and mechanical fixtures were prelocated by the owner prior to the time Respondent was hired. Respondent did not purport to draft plumbing, electrical or mechanical plans in detail in the final plan. Except in one respect, the detail was sufficient to guide the respective trades in the performance of their work and no more detail was required. The only exception was that Respondent approved a special detail of the hub drain/trap primer which was not in accordance to code. Since Respondent provided a special detail which did not meet the code requirements and which was not demonstrated to be justified by the circumstances of the Bay Podiatry project, he is guilty of negligence in the drawing of the Bay Podiatry plans in that aspect. Given the fact that this is a very small error in a larger project and that the drain was put in according to code during the construction of the building, Respondent's violation is a minor one. Finally, the draftsman, without instructions from Respondent, put some plumbing and mechanical notes in the plans which clearly did not relate to the project. Respondent did not catch the inclusion of the notes and sealed the plans with the superfluous notes in them. However, it was obvious that the notes did not relate to the project and the trades involved ignored them. The notes did not cause any problems during the construction and were not shown to be inimical to the public health and safety. Therefore, while the inclusion of the notes was sloppy work, there was no negligence shown on the part of Respondent. Eleventh Street Office Park The plans for the Eleventh Street Office Park were signed and sealed by Respondent on January 31, 1989 The Eleventh Street Office Park project demonstrates best the dynamism involved in an evolving construction project. Often, as with the Eleventh Street project, an owner is not sure of the best method or design (usually determined by lowest cost) to utilize prior to construction or whether he wants to go forward with the expense of construction of a building given certain designs. On the Eleventh Street project three plans were developed, beginning with a three story structure with structural steel and precast walls, and ending with a large, one story, cement block structure on a cement slab. All the plans were for a shell building and did not include any floor plan. Preliminary rough drawings were completed by a draftsman who was hired by the project's owner. Respondent reviewed these rough drafts and over the course of several weeks made numerous structural changes. After the plans were re-drawn to Respondent's satisfaction, he submitted them to the building department in order to obtain a building permit. There is no question that the plans for the Eleventh Street project were drawn under Respondent's direct supervision and control. Therefore, Respondent is not guilty of improperly using his seal. The plans submitted to the building department were not intended to be complete. For instance, the owner had not decided where to locate the restrooms in the building. However, the owner, for unspecified reasons, wanted to proceed with obtaining a building permit. With that decision open, the detail for the plumbing aspects of the plan were not intended to be complete or to match as to specifics. Such limited detail was intended only to place the building department and the contractor on notice that some consideration had to be given to the upcoming plumbing. The same considerations applied to the electrical and mechanical aspects of the plans. All of the evidence concerning deficiencies in the electrical design of the Eleventh Street Office Park was based on Petitioner's expert's review of a single sheet of plans obtained from the building Department. This sheet is mysterious as to its origins and relationship to the Eleventh Street project. The sheet was not prepared by Respondent, did not bear his seal, lacked the fire department's approval which was present on other pages of the project's plans, and was a different size paper than those sealed by Respondent. There was no substantial evidence which demonstrated Respondent had prepared this sheet or that the sheet reflected the electrical plans used in the Eleventh Street project. The absence of extensive detail or the provision of extraneous notes on the electrical, mechanical and plumbing aspects of the plans were justified by the fact that the owner of the project had not made up his mind in regards to those details, such decisions could be determined later in the construction process, the Eleventh Street project was a shell building and there was sufficient detail for the licensed trades to perform their tasks when the time came and the decisions were made. The incompleteness of these plans in that regard was clearly justified by the specific circumstances of the Eleventh Street project. Therefore, Respondent is not guilty of violating Chapter 471, Florida Statutes. As with the Bay Podiatry project, the only exception to the above was that the hub drain/trap primer detail was not in accordance with the building code. For the reasons stated in regards to the Bay Podiatry project, the provision of the hub drain detail constitutes negligence in the practice of engineering in violation of Section 471.033(1)(g), Florida Statutes. Again the violation is a minor one. Similarly, as with the other three projects, no substantial evidence was presented that Respondent performed any architectural services in relation to the Eleventh Street project which were not incidental to the engineering services he performed. There was a great deal of debate among the experts as to the adequacy of the structural aspects of the Eleventh Street Office Park and whether they met the standards of practice for engineers. Most of the debate centered on how much detail needed to be placed on the plans and whether the detail provided was sufficient for a contractor to build a safe building. The better evidence demonstrated that the amount of detail on the plans was sufficient to enable a contractor to build a safe building. The detail which was not contained on the plans was contained in the building code and did not need to be included on the plans. Such a practice comports with the standard of practice in the Bay County area and is a specific circumstance of a project which would enable a professional engineer to exercise his judgment and not include such detail. 4/ Moreover, although the calculations were not contained on the plans, Respondent did, in fact, determine the structural soundness of the Eleventh Street project. Therefore, Respondent is not guilty of violating Section 471.033(1)(g), Florida Statutes. The only exception to the above is that Respondent was negligent in specifying the type of mortar to be used in the concrete walls. In essence Respondent specified three different types of mortars. These mortars significantly differed as to each mortar's respective strength. Use of an improper mortar in the concrete walls can effect the strength of the wall and cause them to be unsafe. This inconsistency in detail or specifications differs from the inconsistency in details or specifications where such details or specifications obviously do not apply to the project or where such details or specifications have no contrary reference in the plans. The latter two cases while showing sloppy work are not necessarily indicative of negligence and depend greatly on the surrounding facts and circumstances before a finding of negligence can be made. The inconsistency with the mortar is indicative of negligence since a contractor may very well use the wrong mortar on a project. In this case, the inconsistency did not become a problem and Respondent was present as the project manager to handle any problem which may have arisen. Therefore, the violation of Chapter 471, Florida Statutes, is moderate to minor.
Recommendation That the Department enter a Final Order finding Respondent guilty of five violations of Chapter 471, Florida Statutes, assessing a total fine of $750.00 and placing the Respondent's license on probation for a period of one year, during which Respondent should be required to take and pass a course or courses on the proper methods of plan drafting for the four violations involving negligence; and issuing a letter of guidance for the violation involving the date. DONE and ENTERED this 22nd day of February, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1991.
The Issue Whether the Respondent's license as a registered general contractor should be disciplined?
Findings Of Fact The Respondent is a registered general contractor in the State of Florida. His license is number RG 0001015. At all times material to this case, the Respondent has held license number RG 0001015. The Respondent has been in the construction business for 51 to 52 years. During the Fall of 1985, Mr. Edward J. Ashley discussed a construction project at Mr. and Mrs. Ashley's residence with the Respondent. The Ashley's residence is located at 2353 Hampshire Way, Tallahassee, Florida. The Ashleys and the Respondent, on behalf of Big Bend Builders Corp., Inc., agreed on the construction work to be performed and the price to be paid for the work. The agreement was memorialized on October 7, 1985, (hereinafter referred to as the "Proposal"), by the Respondent and presented to the Ashleys. Pursuant to the agreement between the Ashleys and the Respondent, Big Bend Builders Corp., Inc., was to construct a room addition to be used as a porch in the back of the existing residence, extend a master bedroom and bathroom, replace the tile in the bathroom, remove a partition between the kitchen and the living room and replace the existing roof with fiberglass shingles with a 20-year warranty. The Ashleys agreed to pay the Respondent's corporation $28,300.00 in consideration of the work to be performed. The Proposal presented to the Ashleys by the Respondent was never signed by the Ashleys but they did agree verbally to the work to be performed. The Ashleys and the Respondent agreed verbally that the construction price would be paid in two installments. One installment was to be made when half the construction was completed and the other half was to be paid when the construction was completed. The Ashleys made the first payment on December 5, 1985. The payment was for $14,000.00. Although the project was not completed, the Ashley's made a partial payment of $6,000.00 on January 10, 1986. The second payment was made earlier than agreed upon at the request of the Respondent. The Respondent told the Ashleys that the payment was needed so that the project, which was already late, could be completed. The Ashleys and the Respondent agreed verbally that the construction would be completed by December 15, 1985. Construction began at the Ashleys on November 14, 1985. On November 22, 1985, the concrete slab for the addition to the Ashley's home was poured in the morning. That afternoon a hurricane struck and rain associated with the hurricane washed away the top layer of concrete. The loss of the top layer of concrete caused the slab to be rough and uneven. It was especially unsightly in the area where the new room was being added as a porch. The Ashleys planned to leave this area uncovered. When they complained to the Respondent he told them not to worry, that he would take care of it. It was not repaired, however. The slab was also uneven in the bathroom and approximately 1 and 1/2 inches higher than the existing slab in the master bedroom. These problems were also not corrected. The area where the new slab joined the existing slab in the master bedroom was ground down but a bump still remains. The trusses of the addition to the residence were higher than the existing trusses. Although some of the problems associated with this problem were corrected, there remains a bump on the roof of the addition. The wall between the bathroom and the master bedroom did not match the existing wall. This problem was not corrected and is still visible. The Respondent filed an application for a building permit with the City of Tallahassee on November 12, 1985. The permit was issued on November 13, 1985. The Respondent was required to arrange slab, framing, and insulation inspections and a final inspection of the construction at the Ashley's residence. The Respondent had the slab inspection completed on November 19, 1985. The framing inspection was conducted on December 11, 1985, by Mr. Rackley. The construction did not pass this inspection because there was no "header" over one door and the ceiling joists were not adequately attached. It was the Respondent's responsibility to correct the problems found as a result of the framing inspection before proceeding with construction. The fact that the construction failed the framing inspection was noted on the copy of the building permit which is displayed at the construction site. Ms. Ashley was the only person present during the inspection other than the inspector. On December 17, 1985, Mr. Rackley saw the Respondent at a party and mentioned the door header and the failure of the residence to pass the framing inspection. The ceiling joists were not mentioned. At the time the framing inspection was completed, the construction was 40 to 50 percent complete. By letter dated February 12, 1986, Mr. Rackley asked the Respondent why the Respondent had not requested a re-inspection. The Respondent proceeded with construction without passing a framing inspection. Therefore, in the February 12, 1986 letter from Mr. Rackley the Respondent was directed to uncover the areas which had failed the inspection so that they could be re-inspected. The Respondent did not respond to Mr. Rackley's letter of February 12, 1986. Therefore, on February 24, 1986, the Respondent was contacted by Mr. Rackley by telephone. The Respondent agreed to open the areas necessary to complete the framing inspection. On February 26, 1986, the framing inspection was completed. An opening had to be cut in the existing roof for the inspection to be completed. The Respondent did not fail to arrange a re-inspection of the property in order to hide anything or cover-up improper work. The construction passed the insulation inspection. No final inspection of the construction has ever been requested or completed. As a part of the Respondent's agreement with the Ashleys, the Respondent was to remove the roof on the existing structure and cover it and the new roof with fiberglass shingles with a 20-year life. The shingles used by the Respondent were Temko shingles. Manufacturers of roofing materials generally recommend how to apply their products in writing. Therefore, Temko included instructions for the application of the shingles used by the Respondent. The instructions were written on the paper used to wrap the bundles of shingles. In order for the manufacturer's guarantee of the Temko shingles to be effective, the shingles must be installed according to the manufacturer's instructions. The Southern Building Code, which applies in Leon County, also requires that manufacturer's instructions be complied with. The following pertinent instruction, among others, was included with the shingles used on the Ashley's residence: LOW SLOPE APPLICATION: On pitches of 2" per foot to 4" per foot, provide a double underlayment of asphalt saturated felt by applying a 19" wide felt strip along the eaves and over this apply a full 36" wide sheet. Continue with full 36" wide sheets, lapping each 19" over the preceding course. If winter temperatures average 25 F or less, thoroughly cement the felt to each other with Temko plastic cement from eaves and rakes to a point a [sic] least 24" inside the inside wall line of the building. This instruction is consistent with roofing industry standards. The roof of the Ashley's residence pitches at 2" to 2 1/2" per foot. Therefore, the Respondent should have applied two layers of felt to the roof as specified in the "Low Slope Application" instruction. The Respondent's crew, however, only applied one layer of felt to the Ashley's roof. The instructions for the shingles also specified that each shingle be attached with four nails placed in a particular pattern. The Respondent's crew did not follow these instructions. Along the edges of the roof, the felt should have been cemented to the roof. It was not, however. Shingles placed in the valleys on the roof were not attached in any manner to the roof. The manner in which the roof was installed was incompetent. After the roof was placed on the Ashley's residence, water leaked in at several locations. The Respondent did not return the Ashley's telephone call. One of the Respondent's work crew when informed about the leaks told Mr. Ashley that the roof was not leaking; that it was blowing in from outside. Some of the problems with the roof were corrected by the Respondent. They were corrected, however, only after a building inspector was called in by the Ashleys. Even then, the leaks did not stop. The Ashleys subsequently paid another contractor $560.00 to correct problems with the roof. Throughout the period of time that the Respondent's crew worked at the Ashley's residence, whenever a problem arose, the Ashleys would be told not to worry about the problem; that it would be taken care of. Many of the problems, however, were not taken care of by the Respondent. Throughout the period of time that work was being performed at the Ashley's residence, there were numerous times when no one would perform any work at the Ashley's. Weeks would often go by without the Ashley's seeing the Respondent and without the Respondent's presence at the Ashley's. During the period that work was being performed at the Ashley's residence, there was a great deal of rain and the temperature dropped below 40 degrees. These weather conditions slowed progress on completing the job. These weather condition were not unique, however, and the Respondent admitted that he knew it rains and gets cold often during the period of time involved in this proceeding. One weather problem that the Respondent could not have reasonably foreseen was the hurricane which struck Tallahassee on November 22, 1985. As a result of damage to property caused by the hurricane, roofing and other materials were more difficult to obtain. Rain associated with the hurricane washed away the top layer of the concrete from the slab that was poured the day the hurricane struck. The Respondent checked with the weather service that morning. Based upon the projected weather, the hurricane was headed away from Tallahassee and rain was not expected until that afternoon. The concrete was poured in the morning and would have been dry before the afternoon. The weather forecast was incorrect, however, and the rain struck earlier than expected. After work had commenced on the Ashley's residence, the agreement was modified. The Respondent indicated that he could not do the tile work in the bathroom. Therefore, the agreed upon price for the project was reduced by $2,000.00. The Ashleys also had the Respondent perform other work not originally agreed upon; 2 skylights and a door were added and additional brick work was performed. These changes caused some delay in completion of the project. The evidence did not prove, however, that all of the delay was attributable to the changes in the work to be performed. Much of the delay was caused by the fact that the Respondent's crew simply did not show up to work at the Ashley's residence. The delays in completing construction at the Ashley's residence were on the whole not reasonable. Although days were lost because of weather conditions, including the hurricane, and changes in the work to be performed, the days that no work was performed were not reasonable or caused by these factors. The Respondent failed to properly supervise the work performed at the Ashley's residence. Although the Respondent indicated that he relied upon the men who worked for him, he was ultimately responsible for the proper completion of the project. The project was not completed and some of the work performed was not performed in a satisfactory manner. The Respondent was not allowed to complete the project. The Ashleys eventually got so fed up with the Respondent's failure to correct problems and to complete the project that they would not allow the Respondents onto the property. Sometime after 1981, the Respondent received forms from the Petitioner which could be used to register his contracting license in the name of Big Bend Builders Corp., Inc. He asked his former attorney to complete the forms for him. The forms were completed and placed in the Petitioner's mail. The Respondent's license has not been registered in the name of Big Bend Builders Corp., Inc. The Respondent believed that his license was being switched to the corporate name. He knew or should have known that the change had not been completed because he did not receive a copy of a license with the corporate name. The Respondent's license had previously been held in a corporate name. The heading of the Proposal indicates that it is a proposal of "Big Bend Builders Corp., Inc." The Proposal was signed by the Respondent and was also signed "Big Bend Builders Corp., Inc. by Welton Smith." Mr. Ashley understood that the agreement he was entering into was with Big Bend Builders Corp., Inc. The two payments made by the Ashleys were made by checks. The checks were made out to Big Bend Builders Corp., Inc. The building permit on the Ashley's residence was applied for and issued in the name of Big Bend Builders Corp., Inc. Big Bend Builders Corp., Inc., was not qualified with the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of violating Sections 489.129(1)(d), (g), (j) and (m) and 489.119, Florida Statutes (1985). It is further RECOMMENDED: That the Respondent be required to pay an administrative fine of $2,000.00. DONE and ENTERED this 2nd day of September, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2641 The parties have submitted proposed findings of fact. It has been generally noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 2. 2 56. 3 4. 4 5. 5-6 6. 7 7. 8 18. 9-10 18 and 61. 11-12 10. 13 39 and 41. 13 The first sentence is hereby accepted. The second sentence is not supported by the weight of the evidence. This state- ment was made to the Ashleys but in regard to the problems they had with their roof. 14 43. 15-16 44. 17 21. 18 21, 23 and 25. The building inspector informed the Respondent of the failed framing inspection on December 17, 1985, and not December 7, 1985. 19 28. 20 26. 21 33 and 34. 22 Hereby accepted. 23 37 and 38. 24-25 Hereby accepted. 26 38. 27 37. 28-29 39. 30 38-39 and 42. 31-35 Cummulative. 36-37 57. Respondent's Proposed Findings of Fact 1 Hereby accepted. 2 2. 3 28 and 29. There was no "final inspection" performed on the project. There was a final framing inspection, however, that indicated that the work that originally failed the inspection had been performed correctly. 4-7 These proposed findings of fact are not supported by the weight of the evidence. 47-48 and 50. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 10-11 Hereby accepted. 12 62. The last sentence is not supported by the weight of the evidence. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Sole, Esquire General Counsel Department of Professional Regulation Tallahassee, Florida 32399-0750 W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Elwin Thrasher, Jr., Esquire 908 North Gadsden Street Tallahassee, Florida 32303
