The Issue Whether Respondent engaged in negligence in the practice of engineering, in violation of section 471.033(1)(g), Florida Statutes (2014), and implementing rules,1/ as alleged in the Administrative Complaint, and, if so, what is the appropriate sanction?
Findings Of Fact The Board is the state entity charged with regulating the practice of engineering, pursuant to chapter 455, Florida Statutes. FEMC provides administrative, investigative, and prosecutorial services to the Board pursuant to section 471.038. At all times material to this case, Mr. Holt was licensed as a professional engineer in the state of Florida, with license number PE 15252. The Board has adopted Responsibility Rules of Professional Engineers (Responsibility Rules). These rules are contained in Florida Administrative Code Chapters 61G15-30 through 61G15-36. Mr. Holt is required to comply with the Responsibility Rules when performing engineering services. On December 3, 2014, FEMC received a complaint filed by Mr. John Farinelli, chief building official for the City of Belle Glade, Florida (City). Mr. Farinelli had reviewed plans for three residential construction projects which had been submitted to the City for general building permits. The engineering plans for each project had been signed, sealed, and dated by Mr. Holt. Mr. Farinelli found what he believed to be numerous errors on the plans, resulting in the complaint against Mr. Holt. After receipt of the complaint, the engineering plans were reviewed by professional engineers retained by FEMC. Mr. Homer A. Ooten, Ph.D., P.E., LEED-AP, reviewed the electrical and mechanical elements of the plans; Mr. Roger L. Jeffery, P.E., LEED-AP, reviewed the structural elements of the plans. Based substantially upon engineering reports prepared by these engineers, an Administrative Complaint against Mr. Holt was filed on or about September 15, 2015. Mr. Holt filed an "Answer to Administrative Complaint" on October 23, 2015. In that pleading, he admitted that: Rule 61G15-30.002(1), Fla. Admin. Code, mandates that Respondent, as the engineer of record for all projects delineated in the Specific Allegations, is professionally responsible for the documents prepared. As such, Respondent is responsible for producing documents that comply with the applicable portions of the Responsibility Rules. In response to other portions of the Administrative Complaint setting forth requirements of the Responsibility Rules concerning electrical systems design, he repeatedly stated "any departures are justified by the specific circumstances of the project in question and the sound professional judgment of the Respondent." In response to specific allegations of material deficiencies in the electrical engineering design documents, Mr. Holt responded that any omissions were "negated by Respondent's reference to the NFPA 70 National Electrical Code 2008." Mr. Holt made numerous similar claims that departures were justified based on circumstances and his professional judgment in response to portions of the complaint setting forth the requirements for mechanical systems design, involving both heating, ventilation, and air conditioning (HVAC) and plumbing elements. He also noted that "Respondent merely designed a hole for a future wall unit." Although Mr. Holt thus accepted responsibility for electrical and mechanical elements of the drawings prior to hearing, arguing that any departures were justified in the exercise of his "professional judgment," he later took a different tack. In testimony at hearing, Mr. Holt maintained that he signed and sealed the documents only as a structural engineer and that he did not therefore assume responsibility for any elements of the drawings constituting electrical or mechanical engineering. On cross-examination, Mr. Holt was evasive when asked who was responsible for the electrical and mechanical elements of the drawings he had sealed: Q. Whose work was it, if it wasn't yours? A. Whose work was it? Q. Yes. A. I don't know for sure. A lot of times we include air conditioning companies, electrical contractors. Depends. Q. Somebody drew the drawings. Did your office draw the drawings? A. What are you getting at? Q. I'm just asking a question. A. What was included or what was drawn? Q. I just want to know -- somebody drew these documents. A. Yes. My draftsmen drew them all up, yes. Q. They were all drawn up in your office? A. In my office? He has his own offices. Okay. Q. They were all drawn up by your draftsmen? A. Yes. Q. And that included the electrical work, mechanical work, and structural work all by your draftsmen? A. The structural input was mine. He drew it, yes. As was ultimately clear from his testimony, Mr. Holt was well aware that no other engineer was responsible for any part of the engineering drawings for the three residential construction projects. Mr. Holt was in responsible charge for the preparing, signing, dating, sealing, and issuing of all three of the engineering plans, whether he prepared them personally or whether they were prepared by his draftsmen. He was the engineer of record for all three projects. As he admitted, he was fully aware that the engineering drawings were submitted under his seal and filed for public record with the City for building permits. He knew that the drawings under his seal would be, and were, reviewed by City officials, not only as to structural elements, but also for electrical and mechanical elements, as the City was required to do. At hearing, in support of his position that he was not responsible for anything on the drawings other than the structural work, Mr. Holt noted that his name and address had appeared under the words "Structural Design Review by:" on the drawings for two of the projects. He added that he also "should have put that on there" for the third set of drawings. The title "Structural Engineer" also appears underneath Mr. Holt's name and address on the third set of drawings. Mr. Holt's signature appears in a different area on all three drawings, followed by the letters "P.E." and Mr. Holt's engineering license number. The references to "Structural Design Review" and "Structural Engineer" on the engineering drawings near his name and address were not sufficient to indicate to a City official or other person reading the drawings that, by use of these, words Mr. Holt intended not to accept responsibility for various elements of the drawings. Under the circumstances of this case--in which the engineering drawings were prepared under Mr. Holt's responsible charge, and he knew that they would be filed for public record to obtain building permits--it is disingenuous for Mr. Holt to attempt to disclaim responsibility because of the language "Structural Design Review by:" or "Structural Engineer." His argument that, at worst, he simply failed to clearly indicate the limits of his responsibility, is completely rejected.2/ As to the structural engineering elements for which Mr. Holt did accept responsibility at hearing, he maintained that any departures from the Responsibility Rules were justified by the specific circumstances of the project in question and his sound professional judgment. Mr. Holt also argued that his general citation to the Florida Building Code (FBC) put the contractor on notice of all of the construction code requirements. Finally, he argued that certain specifications did not need to be included in the engineering drawings if those specifications were commonly known in the county or area where the construction was to take place. The testimony of Mr. Ooten and Mr. Jeffery at hearing convincingly refuted all of Mr. Holt's contentions. First, departures from the Responsibility Rules, even if they are justified by circumstances and the professional judgment of the engineer--which these were not--must be documented. Second, general references to applicable electrical, mechanical, and building codes do not incorporate the entire content of those codes so as to meet the specific documentation requirements of the Responsibility Rules. Third, while Mr. Holt's testimony that specifications for certain construction materials were well known in his area is credited, his argument that this eliminated the requirement to include them on the engineering drawings was completely unsupported by the Responsibility Rules or the FBC, and is rejected. Findings related to the specific allegations in the Administrative Complaint are discussed below. Mr. Holt testified that he did not dispute the opinions of Mr. Ooten as to the electrical and mechanical deficiencies in any of the plans. Betancourt Project On or about July 29, 2014, Mr. Holt signed, sealed, and dated revised engineering drawings for a conversion/renovation project located at 117 Northwest Avenue H Place, Belle Glade, Florida (Betancourt Project). The Betancourt Project drawings included sheets S-1 through S-3. It was clearly and convincingly shown that the electrical engineering design documents for the Betancourt Project are materially deficient as follows: The drawings contain an electrical riser diagram, but no short circuit values and no voltage calculations for the feeders and customer-owned service conductors. If the circuit breakers and the wires are undersized, then the electrical systems can overheat and that affects the safety of the occupants. The panel schedule does not contain the information it should. It has blank spaces that do not indicate whether there are missing circuit breakers. Conductor sizes, insulation types, circuit-interrupting devices, and fault current interrupting capability are omitted. No surge protective devices are shown on the drawings. While Mr. Holt argued at one point that no surge protection was required, Mr. Ooten credibly testified that the Responsibility Rules required it. He also noted that if there had been a justified departure from this requirement, a notation to that effect on the drawings was required, and there was none. The main electrical panel was not located on the plans. The fact that it was shown on the electrical riser diagram is not sufficient. The drawings show no circuitry for outlets, equipment, devices, or smoke detectors. The reference in the panel schedule to "building receptacles" is not sufficient. There is no outdoor receptacle outlet shown at the front and back of the one-family dwelling. There is no 125-volt receptacle outlet shown at an accessible location within 25 feet of HVAC equipment. The drawings do not contain information required by section 107.3.5 of the Florida Building Code-Building (FBC-B), requiring documents to show electrical overcurrent protection and wiring methods and materials. The legend on drawing sheet S-2 has a symbol for a ceiling-mounted light (style by contractor), but the drawings contain no specifications for any fixtures. The drawings show no circuitry for any lighting fixtures on this project. The lighting design drawings contain no energy form or calculated values to demonstrate compliance with the Florida Energy Code for Building Construction. The HVAC engineering design documents for the Betancourt Project show a new wall air conditioning unit, but no size, no voltage, no disconnecting means, and no circuit for the unit. While it was clearly shown that section 2701.1 of the FBC- B requires that electrical equipment shall be designed in accordance with the provisions of the National Fire Protection association (NFPA) 70, the National Electric Code (NEC), it was not clearly shown what provision of the NEC, if any, these omissions from the drawing violated. Section 1901.4 of the FBC requires construction documents to contain the specified compressive strength of concrete and the specified strength or grade of reinforcement. As Mr. Jeffery testified, structural engineering drawings also need to contain detail as to how a piling is anchored to the pile cap, particularly in plans designed, as these were, to withstand a wind sheer of 170 miles per hour. Mr. Jeffery also credibly testified that the overlap of reinforcing steel needed to be a minimum of 18 inches and that one of the bars was shown as 12 inches in total length, with about eight inches embedded into the footing, leaving only four inches of overlap. It was clearly and convincingly shown that the structural engineering design documents for the Betancourt Project are materially deficient as follows: The strength of the concrete and reinforcing steel are missing. There is no detail indicating how the piling is connected to the pile cap. The lap length of the reinforcing steel in the masonry walls is too short. Bullock Project On or about May 19, 2014, Mr. Holt signed, sealed, and dated revised engineering drawings for a residential conversion/renovation project located at 251 Noah Court, Belle Glade, Florida (Bullock Project). The Bullock Project drawings included sheets A-1 through A-3. It was clearly and convincingly shown that the electrical engineering design documents for the Bullock Project are materially deficient as follows: There is an electrical riser diagram, but it contains only one panel and one electrical meter. The drawings contain some conductor sizes, no insulation types, some circuit interrupting devices, and no fault current interrupting capability. No surge protective devices are shown on the drawings, and there is no notation on the drawings indicating any reason for departure from this requirement. One electrical distribution panel is shown for the south unit on Sheet A-1, but no panel is shown for the north unit. No meters are shown. The drawings show no circuitry for outlets, equipment, devices, or smoke detectors. The drawings do not indicate that an outdoor receptacle outlet is to be installed at the front and back of the Bullock Project. The drawings contain partial load computations for the panel schedule on sheet A-1, but they are inadequate to explain the wiring. The calculation is 99 amps, but that is serving into only one panel, which is not an appropriate design. The drawings do not contain information required by the FBC. Section 107.3.5 of the FBC-B requires branch circuitry and separate overcurrent protection for each of the two units, wiring methods and materials, and load calculations. While some information is included, it is incomplete, and some is incorrect. The legend on drawing sheet A-1 has a symbol for a ceiling-mounted light, but the drawings contain no specifications for any lighting fixtures. The drawings show no circuitry for any lighting fixtures for either unit. The lighting design drawings contain no energy form or calculated values to demonstrate compliance with the Florida Energy Code for Building Construction. It was clearly and convincingly shown that the HVAC engineering documents for the Bullock Project are materially deficient as follows: The drawings did not contain adequate information for the City to determine compliance with codes and ordinances. The drawings contain no air conditioning equipment schedules for air handling units and condensing units. The drawings do not contain cooling coil requirements based on sensible heat, latent heat and total heat gains; outside and inside design dry and wet bulb conditions; nor outside (fresh) air make-up conditions. The drawings contain no specifications for heating equipment. The drawings contain no condensate discharge piping layouts. No HVAC ductwork is shown on the drawings. The mechanical drawings do not contain all data required to complete the Florida Energy Code calculations, as required by the chapter 13 of the FBC-B. It was clearly and convincingly shown that the plumbing engineering design documents for the Bullock Project are materially deficient as follows: The drawings contain no plumbing equipment schedules. No potable water isometric diagrams are shown. Total water fixture units for either dwelling unit are not shown on the drawings. One isometric sanitary riser diagram is shown; however, total flow waste fixture units for both dwelling units are not shown on the drawings. No storm riser diagrams or area drainage calculations are shown on the drawings. The drawings contain no sanitary piping layouts, no cold water, no hot water, and no storm drainage piping layouts. Florida Building Code—Plumbing (FBC-P), 2010 Edition, is noted as an applicable plumbing code. However no other codes, design standards, or requirements are shown on the drawings. No specifications for materials for plumbing systems are shown on the drawings. It was clearly and convincingly shown that the structural engineering design documents for the Bullock Project are materially deficient as follows: The strength of materials for the reinforcing steel, grout, and masonry are missing. There is no detail indicating how the piling is to be connected to the grade beam. The engineer of record's engineering requirements for the delegated engineer for the wood roof trusses are missing. The phrase "pre-engineered wood trusses" appears, but no requirements. Morales Project On or about July 16, 2014, Mr. Holt signed, sealed, and dated engineering drawings for a residential extension project located at 1033 Whitaker Road, Belle Glade, Florida (Morales Project). The Morales Project drawings included sheets S-1 and S-2. It was clearly and convincingly shown that the electrical engineering design documents for the Morales Project are materially deficient as follows: The plan view on sheet S-1 shows the existing electric meter is to remain on the new covered patio, with no mention that the contractor needs to raise the height of the weather head so that it is at least eight feet above the roof as required by NEC 230.24. The drawings contain no panel schedules, no circuit interrupting devices, and no fault current interrupting capability. No surge protective devices are shown on the drawings. The drawings show no new panel, no existing panel, and no sizes, except for the addition of one 20-amp breaker. Whether or not a new or existing panel would have adequate physical space or electrical capacity to add the 20-amp breaker is not addressed. The drawings contain no circuitry for loads added by this project, or existing circuitry, and thus are deficient in circuiting all outlets, equipment and devices. NEC 210.52(E)(1) requires that at least one outdoor receptacle outlet be installed at the front and back of a one- family dwelling. No outlet is indicated. The drawings do not contain all information required by the FBC. Section 107.3.5 of the FBC-B requires that documents show electrical wiring, branch circuits, grounding, wiring methods and materials, and load calculations. The information that is provided is inadequate. The drawings contain no information on the performance specifications or number of lamps on the ceiling fans. The drawings show no circuitry for any lighting fixture, and no panel is shown. The design drawings contain no energy form or calculated values to demonstrate compliance with the Florida Energy Code for Building Construction. It was clearly and convincingly shown that the mechanical engineering design (HVAC) documents for the Morales Project are materially deficient in that the HVAC Scope of Work included a toilet exhaust fan for ventilation. No heat was specified, and the exhaust fan size was omitted from the drawings. It was clearly and convincingly shown that the plumbing engineering design documents for the Morales Project are materially deficient as follows: The drawings contain no equipment schedules for all plumbing fixtures, water heater, valves, and accessories. Potable water isometric diagrams and total water fixture units are not shown on the drawings. Total sanitary waste fixture units are not shown on the drawings. No storm riser diagrams or area drainage calculations are shown on the drawings. The drawings contain no piping layouts for cold water, hot water, sanitary, or storm drainage. The drawings acknowledge that FBC-P, 2010 Edition, is applicable to this project, but fail to list other applicable codes and standards. No specifications for materials for plumbing systems are shown on the drawings. It was clearly and convincingly shown that the structural engineering design documents for the Morales Project are materially deficient as follows: The strength of materials for the concrete, reinforcing steel, grout and masonry are missing. There is no reinforcing steel designated for the concrete piles. The lap length of the reinforcing steel in the masonry walls is missing. There is no detail indicating how the piling is connected to the pile cap. The drawings indicate that a 6" x 6" x 16" concrete masonry unit (CMU) block wall is an optional alternative. Contrary to Mr. Holt's argument, the bathroom walls are not interior walls in this design, as they are bounded by a porch, and this size block is inadequate to resist the design wind pressures. Mr. Holt failed to utilize due care in performing in an engineering capacity and failed to have due regard for acceptable standards of engineering principles in the Betancourt, Bullock, and Morales Projects. It was clearly and convincingly shown that Mr. Holt engaged in negligence in the practice of engineering in each project. Prior Discipline Mr. Holt was charged in FEMC Case No. 01-0159 with engaging in negligence in the practice of engineering. In 2002, he was disciplined by the Board in FEMC Case Nos. 0l-0159, 01- 0106, and 01-0170 after a settlement stipulation. Mr. Holt was charged in FEMC Case No. 2005048785 with engaging in negligence in the practice of engineering. In 2006, he was disciplined by the Board in that case after a settlement stipulation. Mr. Holt was charged in FEMC Case No. 2007068131 with engaging in negligence in the practice of engineering. In 2010, he was disciplined by the Board in that case after settlement stipulation. Mr. Holt was charged in FEMC Case No. 2007047569 with engaging in negligence in the practice of engineering. In 2010, he was disciplined by the Board in that case after settlement stipulation.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Board of Professional Engineers: Finding that John D. Holt, P.E., engaged in negligence in the practice of engineering, in violation of section 471.033(1)(g), Florida Statutes, and Florida Administrative Code Rule 61G15- 19.001(4); suspending his professional engineer license for a period of one year, to be reinstated under such conditions and terms, including a period of probation, as the Board finds appropriate; and imposing an administrative fine in the amount of $10,000.00. DONE AND ENTERED this 16th day of March, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2016.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. The Respondent has been licensed as a professional engineer in the State of Florida since 1964 (license number PE 0010812), having become licensed by examination in the field of mechanical engineering. He has practiced professional engineering since 1964 in and around Fort Walton Beach and Okaloosa County, Florida, as an individual practitioner and as an officer of the Royster Construction Company. The Respondent's formal education and professional experience are in the fields of civil, structural, and mechanical engineering. Although testimony indicates that the Respondent has had some contact with the field of electrical engineering, he lacks significant formal education or professional experience in that specialty. Findings regarding Count I In July 1984 plans for a proposed project to be known as the White Sands Bowling Center were prepared, signed, and sealed by the Respondent in his capacity as a professional engineer. The plans included sheets numbered 1 through 9, of which sheet number 6 and sheet number 9 depict electrical components of the proposed structure. Findings regarding Count II The electrical engineering plans (sheet number 6 and sheet number 9) contain errors and omissions including the following: The "symbol legend" necessary to define components depicted on the plans has been omitted. Fixture types and wattage specifications necessary to determine adequate and appropriate loading of circuits have been omitted. Electrical component and fixture circuit identification numbers necessary to identify such components and fixtures have been omitted. Specifications necessary to determine air conditioning connections have been omitted. Details of fire alarm circuitry required by applicable building codes in force at the time of design have been omitted. Emergency exit fixtures and circuitry required by applicable building codes in force at the time of design have been omitted. Electrical panel details necessary to complete construction have been omitted. Details of connections necessary for installation of indicated aluminum wiring have been omitted. The specification depicted for grounding of the electrical system is not in compliance with applicable building codes in force at the time of design. The electrical riser depicted on the plans is incomplete and does not provide sufficient information to complete construction. The Respondent failed to meet a standard of due care in the preparation of the plans depicting electrical engineering for the White Sands Bowling Center and was negligent in his preparation of those plans. Findings regarding Count III The mechanical engineering plans (sheet number 7, air conditioning, and sheet number 8, plumbing) contain errors and omissions including the following: Specifications of air conditioning units and associated ducting are in conflict and do not provide details necessary to complete construction. Details showing "returns" from outside air are in conflict with known standards of design and do not provide details sufficient to complete construction. Specifications of condensation features do not provide sufficient detail to complete construction and are not in compliance with applicable building codes in force at the time of design. Toilet exhaust system details are not sufficient to complete construction and are not in compliance with applicable building codes in force at the time of design. Details of water supply system source and sanitary collection and disposal required by applicable building codes in force at the time of design have been omitted. The Respondent failed to meet a standard of due care in the preparation of the plans depicting mechanical engineering for the white Sands Bowling Center and was negligent in his preparation of those plans. Findings regarding Count IV The structural engineering plans (sheet number 3) do not contain details sufficient to complete construction, and if built as designed, there is no reasonable assurance that the structure would comply with applicable building codes in force at the time of design. The Respondent failed to meet a standard of due care in the preparation of the plans depicting structural engineering for the White Sands Bowling Center and was negligent in his preparation of those plans.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Counts I, II and IV of the amended administrative complaint, and guilty of misconduct by affixing his signature and number to air-conditioning plans in Count VI. All other charges should be dismissed. It is further RECOMMENDED that Respondent be given the penalty set forth in paragraph 45 of this recommended order. DONE and ENTERED this 3rd day of February, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.
The Issue The issues in these cases are whether the allegations of the administrative complaints are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact The Petitioner is charged with responsibility for regulation of the practice of engineering within the State of Florida. At all times material to these cases, the Respondent has been licensed by the State of Florida as a professional engineer holding license PE40904. At the hearing, the Petitioner presented the testimony of Joseph Berryman, P.E., a professional engineer licensed by the State of Florida. Mr. Berryman was accepted as an expert in structural engineering design, including aluminum structure design. Mr. Berryman's testimony regarding deficiencies in the Respondent's design of the projects referenced herein was clear and persuasive. In response, the Respondent testified that the referenced projects met applicable professional standards, including load and stress standards. The Respondent's primary engineering experience has apparently been in the realm of civil, not structural, engineering. According to Mr. Berryman, the Respondent's calculations included material errors, reflected structural elements other than those identified in the design documents, and revealed misunderstanding and misapplication of engineering precepts. The Respondent's testimony has been rejected. Mr. Berryman's testimony has been credited. DOAH Case No. 12-1635PL (Del Vecchio) On October 7, 2011, the Respondent signed, sealed, and dated a one-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at "3611 Throle" in Rockledge, Florida (the "Del Vecchio" project). The document failed to include elements and information required by the Florida Building Code (FBC) and by the Petitioner's rules. The document failed to identify the height of the mansard rise, failed to detail a proper end connection between diagonal roof bracing and the frame of the structure, failed to identify the size of the "K-bracing" elements included in the design, failed to indicate the size of the corner columns or to show a corner column section, and referenced a design element that had been superseded elsewhere in the document. Additionally, the frame spacing dimensions set forth on the document failed to conform to the width of the proposed structure. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the Aluminum Design Manual (ADM). The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed in the document for compliance with the standard set forth in the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, and purlins) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed by the Respondent has been fully credited. The Respondent's preparation of the design document for the Del Vecchio project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards. DOAH Case No. 12-1636PL (Nunez) On September 20, 2011, the Respondent signed, sealed, and dated a three-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at 4128 Southwest 102nd Lane Road, in Ocala, Florida (the "Nunez" project). The document failed to include elements and information required by the FBC and by the Petitioner's rules. The document failed to identify the height of the mansard rise and failed to detail a proper end connection between diagonal roof bracing and the frame of the structure. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the ADM. The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed in the document for compliance with the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, purlins, cable bracing, anchor bolts, and gusset plates used in a roof beam splice) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed in the Respondent's document has been fully credited. The Respondent's preparation of the design document for the Nunez project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards. DOAH Case No. 12-1637PL (Dunaway) On September 8, 2011, the Respondent signed, sealed, and dated a three-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at 8538 Southwest 135th Street, in Ocala, Florida (the "Dunaway" project). The document failed to include elements and information required by the FBC and by the Petitioner's rules. The document failed to identify the height of the gable rise, failed to detail a proper end connection between diagonal roof bracing and the frame of the structure, failed to indicate the size of the corner columns or to show a corner column section, and failed to identity the metal alloy of a clip used at a detailed shoulder connection. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the ADM. The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed by the Respondent's design document using the information set forth in the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, and shoulder connection fasteners) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed in the Respondent's document has been fully credited. The Respondent's preparation of the design document for the Dunaway project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order reprimanding the Respondent, placing the Respondent on probation for a period of two years under terms and conditions deemed appropriate by the Petitioner, and imposing a fine of $6,000 against the Respondent. Additionally, the final order should prohibit the Respondent from the practice of structural engineering until the Respondent submits to the Petitioner proof of his successful completion of an appropriate examination to be designated by the Petitioner. DONE AND ENTERED this 29th day of August, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2012. COPIES FURNISHED: John Jefferson Rimes, III, Esquire Florida Engineers Management Corp. 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303 Scott Guy Campbell Apartment 805 250 58th Street, North St. Petersburg, Florida 33710 Zana Raybon, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303-5268 Michael Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent's license as a professional engineer should be suspended, revoked or otherwise disciplined based upon the allegations set forth in the Third Amended Administrative Complaint.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of professional engineering in Florida. During the applicable time period set forth in the Third Amended Administrative Complaint, Respondent, Charles A. Wunder, Sr., was licensed as a professional engineer in Florida. He holds license number PE0016670, which has been in effect continuously since 1971. Respondent Wunder's last known address on file with the Board of Professional Engineers is 12620 Eagle Road, Cape Coral, Florida 33909. Plaza 1300 In 1981, the Respondent was commissioned by Messrs. Mike Zak and John Zipkovich to prepare plans for the construction of a commercial building to be developed in Cape Coral, Florida, known as Plaza 1300. At the time the commission took place, the owner-developers represented to Respondent that the construction company with whom he was involved would build the project, and he would supervise construction as a professional engineer. Based upon this representation, the Respondent designed and prepared plans in a way that was less time consuming than the creation of a plan to be used without his continuous supervision and direct involvement in construction. Instead of placing all of the specifications on the drawings, the Respondent chose to incorporate many of the details in the plan through the use of separate specification booklets which would be used by the fabricators and the Respondent during construction. The Respondent judged that this was a reasonable approach to the project design based upon the information he was given by the owner- developers during the design phase. The original plans for the building were completed in January of 1982. Four copies of the drawings, as completed by the Respondent for this project, were sealed with Respondent Wunder's professional seal as an engineer and were given to his clients during that same month and year. These drawings were specific enough to allow Messrs. Zak and Zipkovich to decide whether this was the building they wanted built at the project site. The Respondent did not give the owners the technical specifications that had been placed in the separate booklets because this aspect of the design was beyond what they were seeking to review at the time the project design was presented to them. After the Respondent discussed with the owner-developers what it would cost to build the project, they decided to find another builder who would construct the project for less money. The owner-developers used the sealed drawings when they went looking for a cheaper builder. They did not advise the Respondent of their decision not to retain the construction firm with whom he was affiliated, and they did not reveal they were going to use the drawings for the purpose of retaining a contractor. The owners gave the drawings to David J. Hayes, the general contractor and qualifier for Coral Bay Construction, Inc. This construction company was hired by the owners to build Plaza 1300 pursuant to the sealed drawings created by Respondent Wunder. Once the Respondent was advised that his construction company would not build the building, there must have been some discussions and agreements made with the owner-developers as to how Respondent Wunder would remain on the project for engineering purposes. It is obvious from the evidence adduced at hearing that the Respondent remained actively involved in the project in a number of ways after he completed his design and sealed the drawings. The Respondent's role and involvement in this project is confusing to others who are attempting to delineate what the Respondent's responsibilities were at different stages of the project's development. Sometimes the Respondent performed engineering functions for the owner-developers such as the approval of shop drawings. At other times, he assisted the contractor in working out code disputes with various city agencies and defended or revised his design. The Respondent also completed the structural inspection for the city on this building, and made any necessary design changes the city deemed were necessary to allow the issuance of a certificate of occupancy. By some means, all of the parties managed to delineate responsibilities throughout the project without any conflicts as to who was ultimately responsible for what in any given stage of development. The Respondent was only called upon when he was needed, and he assisted any of the parties when he was asked to do so. The signed and sealed drawings received by the contractor were submitted by him to the building department as the complete set of plans and specifications. Building department personnel relied on the drawings as the complete building plans. However, other city personnel who had questions concerning the specifications contacted the designer, Respondent Wunder. Any questions were resolved to the satisfaction of the city personnel prior to permit approval. For example, when the Fire Marshall had questions concerning whether construction would comply with the Standard Fire Prevention Code, National Fire Codes (NFPA) and the Life Safety Code 101, he discussed the matter with the Respondent. The Fire Marshall was given the Respondent's specification booklet that contained more information on the building materials than what was contained on the plans. Based upon the review of these specifications in addition to the drawings, the project was approved for permit by the Fire Marshall as long as the special conditions listed by him on a separate sheet were met. A permit was issued to construct the building according to the drawings and the additional specifications reviewed by city personnel on May 5, 1982. The contractor was never advised during his ongoing interactions with Respondent Wunder, the owner-developers or city personnel that separate sets of specifications existed which were part of the designer's plans for the project. The contractor relied on the construction drawings, the Respondent's approval of shop drawings prepared by manufacturer's before the structural items were fabricated for placement in the building, the outcome of his own discussions with city personnel about the application and interpretation of various codes as well as Respondent's discussions, and Respondent's structural inspections of the project. Based upon the knowledge and materials obtained by this contractor throughout the project, he was able to construct the building and obtain a certificate of occupancy for the owner-developers. The separate sets of specifications were not provided by the Respondent or the city through its records at hearing because these items were lost, destroyed or stolen from the city and the Respondent years prior to the filing of the charges by the Department. The deficiency in the records was not the fault of the city or the Respondent. Wherever deficiencies alleged by the Department as to design could be resolved in separate specifications, it has been determined that the Respondent did in fact supply this information in additional specification booklets as part of the plan for Plaza 1300. On Sheet S1 of the signed and sealed drawings, the Footing Schedule fails to call for anchor bolts at the base of steel columns in Footings (1,2,4) CB and 7 B-C. Ordinarily, this omission is contrary to the exercise of due care and fails to exhibit due regard for the principles of professional engineering because anchor bolts are required for the columns to function. It is careless to assume a contractor will use the right number and size anchor bolts. In this case, however, the Respondent created a separate specification, approved the shop drawings before the columns and the anchor bolts were delivered for use by the contractor, and inspected the installation of these materials. Any omission of the anchor bolts from the Footing Schedule in the drawings was resolved well before installation of the columns. The Footing Schedule on Sheet S1 calls for dowels at 10 feet on centers in footings supporting masonry walls, but this is inconsistent with the dowel requirements indicated on Sheet S2. This sheet shows the dowels are placed at varying spaces, e.g., some are spaced 46 feet apart, some are 6 feet, 8 feet, 10 feet and 40 feet on centers. Drawings should be consistent as to the information they convey to the contractor. This error could not have been corrected in a separate set of specifications. It resulted in a handwritten entry on the drawings prior to approval by the building department that gave a third alternative as to how the dowels should be placed. The lack of clarity as to dowel placement and the creation of three possible installations was a failure by a professional engineer to use due care in design while performing in an engineering capacity. As this disciplinary proceeding relates only to the design portion of this project, it is unknown if Respondent Wunder was actively involved in the revision accepted by the building department or whether he approved later shop drawings based upon the handwritten entry on the drawings submitted to the building department for approval. The Recommended Bar Details on Sheet S1 of the drawings are ambiguous as they do not specify what portion of the required bottom bars may be stopped short of the supports. The details indicate that some bottom bars are cut off and do not extend into supports, but the number is not specified. An engineer's design must explain which bottom bars extend the full length of the span because the designer is the only one who knows this and he must tell the detailer what he wants. The details cannot be allocated to a fabricator for subsequent approval by the engineer because the bars not needed for moment must be developed in bond beyond the cut off point, according to code requirements. A fabricator would not have the expertise to read the moment diagram and design what the professional engineer's calculations require without specific instructions regarding the bottom bars. Separate specifications would not cure the problem with the ambiguities in the bottom bars because the ambiguities are in the pictures themselves. If the ambiguities could not be clarified in the pictures, they could not logically be clarified with the written word. On Sheet S1, the requirements for top steel reinforcing bars in continuous concrete beams are ambiguous in that the required number and extent of those bars over supports between adjacent beams has not been defined in the drawings. The top bars are detailed in each separate beam with no regard as to how many bars are required between adjacent beams. For example, beams B-1, B-2 and B-3 are adjacent to each other on the second floor, the third floor and the roof. The top reinforcing for beam B-2 does not agree with that of beams B-1 and B-3. If the engineer had a particular area of steel required for this condition, then he has confused the contractor with this detail in the drawings. In this example, the amount of reinforcing varies on the roof beams by 33 percent. The amount of reinforcement should be the same for each bar. The reason this ambiguity could not be resolved in specifications or shop drawings is that the ambiguity is inherent in the design, as represented in its pictorial form. The alleged ambiguities as to Sheet S2 regarding anchor bolts and base plates were resolved in Respondent's favor in a separate specification booklet, and the shop drawings reviewed and accepted by Respondent. His details regarding the stairs were contained in the architectural portion of the drawings in the plans as opposed to the structural drawings. Based upon his design, and his review and approval of the shop drawings presented at hearing, the alleged ambiguities did not exist. The CORRUFORM deck indicated on architectural Sheet A6 is structurally inadequate to safely support code specified loads at the indicated joist spacing. The manufacturer's recommendation, based on an allowable stress of 30,000 PSI on the span of 5 feet is 34 PSF, is a little over one half of the actual load on the deck. The actual load is almost twice what the manufacturer recommends. A separate set of specifications could not correct this deficiency because the properties specified indicate the deck is structurally inadequate to support the required loads set forth on Sheet S1 of the drawings. In Sheet S5 of the drawings, all steel joists specified, except for those marked 8H3, are structurally inadequate to safely support code specified loads, according to the engineering calculations presented at hearing. This deficiency is repeated in the shop drawings. This structural inadequacy fails to exhibit due regard for acceptable standards of engineering principles. The 12 WF27 steel beams shown on Sheet S5 lack the moment resisting capacity needed to safely support code specified loads on the roof. The moment resistance required for the roof beam is 81.89 foot kips. The allowable moment capacity for these beams is 68.4 foot kips. This is an inadequate carrying capacity which could not be cured with additional specifications because it is a design error. The roof was redesigned by the Respondent prior to the roof construction. The beam details provided in Sheet S6 are ambiguous in that they fail to define the number and extent of top reinforcing bars required over intermediate supports in continuous concrete members. It appears from the beam schedule that although B-1 joins to B-2 and B-2 joins to B-3, each beam calls for a different number and size of reinforced bars at the connections. This causes confusion as to whether there should be 3, 4 or 7 reinforcing bars intersecting with each other where the beams are supposed to join. Shop drawings and separate specifications would not cure this deficiency as the ambiguity is in the details of the design. In addition to the structural design deficiencies alleged by the Department, Count I of the Third Amended Administrative Complaint alleges that various provisions of the applicable building codes in effect in the City of Cape Coral at the time the plans were sealed were violated in the design created by the Respondent. The Cape Coral Enforcement Board has already determined that there were two rated separate stairways provided to exit the second and third floors of this building, and that the designed stairways met the applicable provisions of the Standard Building Code, as interpreted, applied, and enforced within the City of Cape Coral. The Board also determined that the travel distance to exits and the corridors met the fire, building, zoning, and related technical codes, as they were interpreted and enforced in this municipality. The fire ratings for the elevator glass were in a separate specification book that Respondent Wunder submitted to the Fire Marshall prior to the Fire Marshall's determination that the sealed plans would be approved if the special conditions listed by the Fire Marshall on the drawings were met. These special conditions are missing and cannot be located. It is unknown if these special conditions related to the elevator glass or if the missing specifications were sufficient. The Respondent is found to have complied with the city's code requirements as to the elevator glass in the missing specification. The Cape Coral Enforcement Board found the doors and walls of the exit pathway to be fire rated and in compliance with all fire, building, and related technical codes as interpreted and in force within this municipality. The building materials used were in a separate specification booklet and were used to purchase the materials prior to installation by the contractor. The stairs designed by Respondent Wunder for this building decrease in width in the direction of exit travel. Both the Standard Building Code and the Life Safety Code in effect at the time of the design prohibit a decrease in the width of stairs in the direction of exit travel. The stair landings were found to be in compliance by the Cape Coral Enforcement Board as the applicable codes were interpreted and enforced within the municipality. Winding stairs, although prohibited as an exit stairway by the Standard Building Code, were designed by Respondent Wunder for use as an exit stairway in this commercial building. The riser and tread design completed by Respondent Wunder did not comply with the Life Safety code adopted by the City of Cape Coral. The design error may have been one of the special conditions placed upon the design by the Fire Marshall prior to his approval of the plans for permit. Uniform risers were placed in the building when it was constructed. In the Third Amended Administrative Complaint, the Department alleged that wood trim in exit stairways is prohibited. The Respondent stated in his answer that he was without knowledge of this prohibition. Because the Standard Building Code does allow wood trim if that wood trim meets certain flame spread characteristics and complies with the interior finish requirements, this allegation in the charging document did not sufficiently alert the Respondent as to what he was required to defend against concerning the wood trim. In addition, the Respondent is found to have satisfied code requirements for any wood trim in a separate specification booklet. A manual fire alarm system was not provided by Respondent Wunder as part of his original design. A manual alarm system was made part of the revised drawings on October 31, 1982, which was well after the permit was issued by the municipality. It is unknown if the omission of the manual fire alarm system in the design drawings was an omission, a matter of code interpretation, or whether the system was originally in the separate specification booklet reviewed by the Fire Marshall prior to his approval of the construction plans. This alleged deficiency is resolved in the Respondent's favor upon the determination that the system was in the separate specifications taken from the fire department. The Department's allegations regarding a standpipe system were removed from consideration prior to the taking of evidence in the formal hearing. The Cape Coral Enforcement Board determined that the vertical openings in the floor and roof of this building and the structural system are adequately fire protected under the city's interpretation of fire, building, and other technical codes in force in the city. The handicap accessibility requirements were not met in the drawings completed by Respondent Wunder. During the design phase of the project, the Accessibility by Handicapped Persons Act was in effect in Florida. Even if the restrooms and water fountains in the facility meet the minimum requirements set forth in Section 553.48(2)(h), Florida Statutes, as a result of the separate specifications, the parking space configurations and building access do not meet all of the applicable minimum code requirements. Schooner Cove In 1984, Respondent Wunder had an ongoing business relationship with the architectural firm of Stout & Gerald in Cape Coral, Florida. The architectural firm would hire Respondent Wunder to review the site drainage on the firm's project designs for buildings located on land within the City of Cape Coral. The following procedure was used by the architectural firm when it retained the Respondent in a couple of hundred projects: One of the architects would telephone the Respondent and ask him for a price on a particular number of units and would advise Respondent of the number of lots involved. The Respondent would be told whether the lots were inland or on a canal. Upon receiving this information, the Respondent would give the firm a price quote. When the project progressed to the point where a drainage review was needed, the drawings would be sent to the Respondent. He would either review, review and do some work on them, or say the drainage was all right. The architects would rely upon this review and go forward with finishing the design from that stage to its completion. When the customer needed signed sealed drawings for a building permit, the architect assigned to a particular project would place his seal on the project for the other work. The Respondent would place his seal on the plans as to the site drainage. On October 22, 1984, Respondent Wunder signed and sealed the site plan for a twelve unit condominium project known as Schooner Cove in Cape Coral, Florida. His title block on the site plan indicated "DRAINAGE ONLY" beneath the name "C.A. Wunder Engineering, Inc." The Respondent did not require a survey or a soil test of the site prior to his drainage review of the site plans because of his working professional knowledge of the soil conditions and the undeveloped lots within the City of Cape Coral at the time the site plans were given to him for review. This judgment call was reasonable based upon the architect's site plan and his failure to call anything unusual to Respondent's attention in the preliminary drainage design prepared by the architect. The Respondent did view the site before sealing the drainage design. A drainage design is comprised of calculations, grading and retention. The drainage design for Schooner Cove relied upon the percolation method to dispose of excess water from ten year critical storm events because there is no overflow/outfall capability from the retention areas that collected the excess water. Calculations are part of a drainage design. They should be performed with relation to a site and the drainage layout shown on the site plans. In determining the appropriate calculations, the engineer who places his seal on a site plan as to drainage must establish grades, overflow and how the drainage will be handled on the project. Both pre-construction and post-development conditions at the site must be reviewed. The drainage design at the Schooner Cove project that received the Respondent's engineering seal was not adequate to provide for reasonably anticipated storm water runoff at the site, post-construction, in a ten year critical storm event. The flooding of the retention ponds in such a storm event should have been apparent to a professional engineer who reviewed the plans with due care and due regard for the principles of professional engineering. Mitigating Circumstances The Department did not present any evidence of a previous disciplinary history in this or any other jurisdiction wherein the Respondent has practiced engineering. Many of the deficiencies alleged in the drawings for Plaza 1300 which were created in 1982, have since been reformed by the Respondent within his engineering firm. He no longer prepares separate specification booklets for projects of this size, and he prepares more detailed drawings that do not rely upon his personal supervision and direction after the design phase of the project. These steps were taken by Respondent even before the violations were charged against him in these proceedings. The way in which the drawings were prepared in Plaza 1300 was an unusual practice for Respondent, and was done in reliance upon the owner- developers' representation that Respondent would be responsible for the supervision of the construction of the building as a professional engineer. Some of the deficiencies in the Plaza 1300 project proved by the Department were minor, and were corrected as the project was built. The drainage design deficiencies in the Schooner Cove project can be corrected with a redesign of the drainage system at the site. Aggravating Circumstances Some of the structural design deficiencies in the Plaza 1300 project drawings reveal that the building's deck, columns and beams may not safely support code specified loads if they were built according to the design in the drawings. The owners of the condominiums in the Schooner Cove project must have the drainage redesigned to alleviate the flooding problems at the site. The fact that the complaint alleges multiple counts of the same provision of Chapter 471 cannot be used for enhancement in this case because that provision of the rules regarding disciplinary guidelines was not in effect when either of the violations occurred. The Department did not prove that enhancement of penalties based upon multiple violations was a policy of the Board of Professional Engineers during the time the violations occurred.
Recommendation In determining what penalty should be recommended for Respondent Wunder, the Hearing Officer considered the severity of the offenses, as well as the degree of harm to the consumers and the public. Based upon the foregoing, including all of the information made available to the Hearing Officer regarding aggravating and mitigating circumstances, it is recommended: The Respondent Wunder be found guilty of having violated Section 471.033(1)(g), Florida Statutes, as alleged in Count I , Paragraph Nine of the Third Amended Administrative Complaint. The Respondent Wunder be found guilty of having violated Section 471.033(1)(g), Florida Statutes, as alleged in Count II, Paragraph 15 of the Third Amended Administrative Complaint. Respondent be fined $1,000.00 for each violation for a total of $2,000.00, and receive a letter of reprimand from the Board. The Respondent's license should also be placed on probationary status for a period of three years. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of May, 1991. VERONICA E. DONNELLY 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 29th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5149 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Rejected, plans completed in 1981. Contrary to date on the drawings. See HO #4. Rejected, these were complete drawings. See HO #3. The rest of paragraph 4 is accepted. See HO #4. Accepted. Accepted. See HO #6 and #9. Accepted. See HO #9. Accepted. See HO #6. Accepted. Accepted. Accepted. See HO #9. Accepted. See HO #10. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #24. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Speculative. Accepted. Accepted. See HO #11. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO #3, #4, #7 and #8. Rejected. Contrary to fact. See HO #3. Accepted. See HO #8. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See Chapter 166, Florida Statutes, Section 6, Art. VIII, Florida Constitution. Accepted. Rejected. Contrary to fact. See HO #9. Accepted. Accepted. Rejected. Speculative Accepted. Accepted. See HO #14 and #15. Accepted. Rejected. See HO #3. Rejected. Overbroad. Addressed individually in findings. Accepted. See HO #13. Accepted. See HO #13. Rejected. Contrary to fact. See HO #13. Accepted. See HO #14. Accepted. Accepted. See HO #15. Accepted. Accepted. See HO #17. Accepted. Accepted. Accepted. Accepted. See HO #17. Accepted. See HO #18. Accepted. Accepted. Accepted. See HO #19. Accepted. Rejected. Contrary to fact. See HO #12 and #20. Accepted. Accepted. Rejected. Contrary to fact. See HO #12 and #20. Rejected. Contrary to fact. See HO #20. Rejected. Contrary to fact. See HO #20. Rejected. Contrary to fact. See HO #12. Accepted. Rejected. Contrary to fact. See HO #3. Rejected. Contrary to fact. See HO #3. Rejected. Irrelevant. Accepted. Reject first two sentences. Relates to construction. The rest is accepted. See HO #21. Accepted. See HO #12. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. See HO #23. Accepted. Accepted. Rejected. Not an allegation in the complaint. Rejected. Not an allegation in the complaint. Rejected. Contrary to fact. See HO #3, #7 and #10. Accepted. Rejected. Conclusionary. See HO #3. Rejected. Irrelevant to charges. Accepted. Accepted. See HO #11. Rejected. Contrary to facts of this case. See HO #3, #7 and #10. Rejected. Contrary to this particular situation when drawing sealed. See HO #3. Accepted. Rejected. Contrary to fact. Accepted. Rejected. Contrary to fact. Accepted. See HO #21. Accepted. See HO #21. Accepted. See HO #21. Accepted. See HO #22. Accepted. Accepted. See HO #22. Accepted. See HO #23. Accepted. Accepted. See HO #23. Accepted. See HO #23. Accepted. See HO #25. Accepted. See HO #25. Rejected. Irrelevant. See HO #3. Accepted. 121. Accepted. See HO #25. 122. Rejected. Contrary to fact. 123. Accepted. See HO #15, #17, #18, #21, #22, #23 and #25. 124. Accepted. See response to paragraph 123. 125. Accepted. See response to paragraph 123. 126. Accepted. 127. Accepted. 128. Accepted. See HO #10. 129. Accepted. 130. Rejected. Contrary to fact. See HO #27. 131. Accepted. 132. Rejected. Contrary to fact. See HO #27. 133. Accepted. 134. Accepted. 135. Accepted. 136. Accepted. 137. Rejected. Contrary to fact. See HO #27. 138. Accepted. 139. Rejected. Contrary to fact. See HO #27. 140. Rejected. Contrary to fact. See HO #27. 141. Rejected. Contrary to fact. See HO #27. 142. Accepted. 143. Accepted. 144. Rejected. Contrary to fact. See HO #27. 145. Rejected. Contrary to fact. See HO #27. 146. Accepted. 147. Accepted. 148. Rejected. Contrary to fact. See HO #29. 149. Rejected. Contrary to fact. See HO #29. 150. Rejected. Contrary to fact. See HO #29. 151. Rejected. Contrary to fact. See HO #29. 152. Rejected. Contrary to fact. See HO #29. 152(a). Rejected. Contrary to fact. See HO #28. Rejected. Contrary to fact. See HO #28. Rejected. Contrary to fact. See HO #28. 154(b). Accepted. 155. Rejected. Contrary to fact. See HO #29. 156. Accepted. See HO #30. 157. Accepted. See HO #30. 158. Accepted. 159. Accepted. 160. Accepted. 161. Accepted. See HO #30. 162. Accepted. 163. Rejected. Contrary to fact. See HO #31. 164. Rejected. Contrary to fact. See HO #31. 165. Accepted. 166. Accepted. See HO #32. 167. Accepted. 168. Rejected. Contrary to fact. See HO #31. 169. Accepted. 170. Accepted. 171. Accepted, but See HO #33. 172. Accepted. 173. Accepted. 174. Accepted. See HO #33. 175. Accepted. Accepted. Accepted, but see HO #34. Accepted. See HO #35. Accepted. Accepted. See HO #35. Accepted. Rejected. Not proved by clear and convincing evidence. See HO #36. Rejected. Not established fact. See HO #36. 184. Rejected. Contrary to fact. See HO #38. 185. Rejected. Contrary to fact. See HO #38. 186. Rejected. Contrary to fact. See HO #38. 187. Accepted. 188. Rejected. Irrelevant. 189. Rejected. Speculative. 190. Rejected. Contrary to fact. See HO #38. 191. Accepted. 192. Accepted. 193. Rejected. Contrary to fact. See HO #38. 194. Rejected. Contrary to fact. See HO #38. 195. Rejected. Contrary to fact. See HO #38. 196. Rejected. Contrary to fact. See HO #38. 197. Rejected. Contrary to fact. See HO #38. 198. Accepted. 199. Rejected. Contrary to fact. See HO #38. 200. Rejected. Contrary to fact. See HO #38. 201. Rejected. Contrary to fact. See HO #3. 202. Rejected. Contrary to fact. See HO #29. Rejected. Not alleged in complaint. Rejected. Contrary to fact. See HO #38. Rejected. Contrary to fact. See HO #38. Rejected. Not alleged in complaint. Rejected. Contrary to fact. See HO #29. 208. Rejected. See HO #3 and #12. 209. Rejected. See HO #3 and #12. 210. Accepted. 211. Accepted. 212. Rejected. Contrary to fact. See HO #38. 213. Rejected. Contrary to fact. See HO #38. 214. Accepted. See HO #39. 215. Rejected. Contrary to fact. See HO #10. 216. Accepted. 217. Accepted. See HO #9. 218. Accepted. See HO #9. 219. Accepted. 220. Accepted. 221. Rejected. Irrelevant. 222. Rejected. Irrelevant. 223. Rejected. Irrelevant. 224. Accepted. See HO #11 and #12. 225. Accepted. 226. Accepted. 227. Accepted. See HO #41. 228. Accepted. See HO #41. 229. Accepted. See HO #40. 230. Accepted. 231. Accepted. See HO #40. 232. Accepted. Accepted. See HO #41. Accepted. See HO #41. Accepted. Accepted. Accepted. See HO #43. Accepted to critical storm 10-year event standard. Rejected beyond 10-year critical year standard. Accepted. See HO #42. Accepted. See HO #44. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #45. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #45. Accepted. Accepted. See HO #45. Accepted. See HO #45. Accepted. See HO #45. Accepted. See HO #45. Rejected. Irrelevant. See HO #42. Accepted. Accepted. See HO #43. Accepted. See HO #43. Accepted. See HO #44 and #45. Accepted. See HO #45. Rejected. Contrary to fact. See HO #42. Accepted. Accepted. Accepted. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #8 and #9. Accepted. See HO #9. Rejected. Contrary to fact. See HO #4. Accepted. See HO #9. Accepted. See HO #9. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #10. Accepted. Accepted. See HO #9. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #9. Accepted. Rejected. Contrary to fact. Rejected. Argument as opposed to factual determination. Attorney comments are not evidence. Rejected. Improper summary. Rejected. Improper summary. Rejected. Irrelevant. Rejected. Contrary to fact. See HO #14 and #15. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #11. Attorney comments not evidence, therefore, that portion is rejected. Rejected. Improper summary. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Attorney comments, not evidence. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #11. Accepted. Accepted. Accepted. Accepted. Accepted, in part. See HO #27 - #39. Those parts rejected are contrary to fact. Accepted. See HO #27 - #39. Accepted. See HO #27. Accepted. See HO #35. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #28. Rejected. Contrary to fact. Unknown, but resolved in Respondent's favor. See HO #36. Accepted. Accepted. Accepted. Accepted. See HO #13. Rejected. Contrary to fact. See HO #15. Accepted, as his testimony only. Rejected as finding of fact. Improper summary. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted, but not as to Respondent Wunder's design. Accepted. See HO #27 - #39. Accepted. See Preliminary Statement. Accepted. See HO #11 and #12. Accepted. Accepted. Rejected. Attorney's comments, not evidence. Rejected. Contrary to fact. See HO #43 - #45. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Rejected. Contrary to fact. See HO #40. Accepted. Accepted. Accepted. Accepted. See HO #40 and #43 - #45. Accepted. Accepted. Rejected. Contrary to fact. See HO #43 - #45. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO #45. Accepted. Accepted. Rejected. Contrary to fact. 117. Rejected. Speculative. Improper summary. 118. Rejected. Irrelevant. 119. Rejected. Irrelevant. 120. Accepted. 221. Accepted. 222. Rejected. Irrelevant. 223. Rejected. Contrary to fact. See HO #45. 224. Accepted. 225. Accepted. 226. Accepted. 227. Accepted. 228. Accepted. 229. Accepted. Rejected. Weight and sufficiency determination. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #40. Accepted. COPIES FURNISHED: Wings S. Benton, Esquire Post Office Box 5676 Tallahassee, Florida 32314-5676 Diane E. McGill, Esquire TURK & SHIPP, P.A. 4223 Del Prado Boulevard Cape Coral, Florida 33904 Carrie Flynn, Acting Executive Director Florida Board of Professional Engineers Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0755 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Oliver J. Turzak violated statutes and rules governing the practice of engineering as charged in the Amended Administrative Complaint filed with the Clerk of the Florida Board of Professional Engineers (the “Board”) on October 4, 2012.
Findings Of Fact Petitioner is charged with regulating the practice of engineering pursuant to chapter 455, Florida Statutes. The Administrative Complaint at issue was filed by the Florida Engineers Management Corporation (“FEMC”) on behalf of Petitioner. FEMC is charged with providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers pursuant to section 471.038, Florida Statutes. Respondent is, and at all times material to these proceedings has been, a licensed professional engineer in the State of Florida, having been issued license number PE 18230. Respondent’s last known address is 5405 Water Street, New Port Richey, Florida 34652. On April 20, 2008, Respondent signed, sealed, and dated a Settlement Stabilization Plan for the Fish Residence located at 11251 Knotty Pine Drive, New Port Richey, Florida (“Fish Residence Project”). On June 10, 2008, Respondent signed, sealed, and dated an engineering opinion letter (“Letter”) which was addressed and sent to Champion Foundation Repair, the entity which was Respondent’s client for the Fish Residence Project. The Letter stated in material part: [Respondent], whose signature appears below, has verified placement of twenty-seven (27) exterior piers and twenty-five (25) interior jack pins as located on the drawings by the same job number. The piers all achieved sufficient load bearing characteristics to transfer the house weight to the piers and to close cracks substantially and stabilize the foundation. The remediation program was developed according to geological data supplied by Central Florida Testing Laboratories, Inc., dated November 2007. Similar pier reports on numerous structures with similar problems have demonstrated long term success without additional settlement. Therefore, it is the opinion of the [Respondent] that the location has been repaired and stabilized and, further, that there is no evidence of new sinkhole activity at the location. In compliance with Florida Statute 627.707, the report and remediation program was prepared under the supervision of a Registered Professional, whose field of expertise is a Geo-Technical Engineer. The Board has adopted Responsibility Rules of Professional Engineers (“Responsibility Rules”). These rules are contained in Florida Administrative Code Chapters 61G15-30 through 61G15-35. Professional engineers, who perform services covered by the Responsibility Rules, are required to comply with those rules. Rule 61G15-30.002(1) mandates that Respondent, as the structural engineer of record, is professionally responsible for the documents prepared for the Fish Residence Project. As such, Respondent is responsible for producing a document that complies with the applicable portions of the Responsibility Rules. Respondent acted as Engineer of Record of the Structure for the Fish Residence Project as that term is defined in rules 61G15-31.002(1) and 61G15-31.003(1). As such, all structural documents prepared, signed, sealed, and dated by Respondent must contain the information set out in rule 61G15-31.002(5), as mandated by rule 61G15-31.001, setting out the General Responsibility standards for engineers designing structures. Section 471.033(1)(g), Florida Statutes, provides that an engineer is subject to discipline for engaging in negligence in the practice of engineering. Florida Administrative Code Rule 61G15-19.001(4) provides that negligence constitutes “failure by a professional engineer to utilize due care in performing in an engineering capacity or failing to have due regard for acceptable standards of engineering principles.” Rule 61G15-19.001(4) also provides that: [F]ailure to comply with the procedures set forth in the Responsibility Rules as adopted by the Board of Professional Engineers shall be considered as non-compliance with this section unless the deviation or departures therefrom are justified by the specific circumstances of the project in question and the sound professional judgment of the professional engineer. Respondent’s June 10, 2008, Letter is an engineering “certification” as that term is defined in Florida Administrative Code Rule 61G15-18.011(4): statement signed and sealed by a professional engineer representing that the engineering services addressed therein, as defined in section 471.005(6), F.S., have been performed by the professional engineer, and based upon the professional engineer’s knowledge, information and belief, and in accordance with commonly accepted procedures consistent with applicable standards of practice, . . . . “Certifications” are subject to the standards set out in Florida Administrative Code Rule 61G15-29.001, which require that if an engineer is presented with a “certification” that “involve[s] matters which are beyond the engineer’s scope of services actually provided” that the engineer must “decline to sign . . . such certification.” Section 471.033(1)(a) provides that an engineer is subject to discipline for “[v]iolating . . . [a] rule of the [B]oard.” Section 471.033(1)(e) provides, in material part, that a professional engineer is subject to discipline for “[m]aking or filing a report or record that the licensee knows to be false” when the report is “signed in the capacity of a licensed engineer.” Rule 61G15-19.001(6) provides that: A professional engineer shall not commit misconduct in the practice of engineering. Misconduct in the practice of engineering as set forth in Section 471.033(1)(g), F.S., shall include, but not be limited to: * * * (b) Being untruthful, deceptive, or misleading in any professional report, statement, or testimony whether or not under oath or omitting relevant and pertinent information from such report, statement or testimony when the result of such omission would or reasonably could lead to a fallacious conclusion on the part of the client, employer or the general public; . . . . The Fish Residence In 2007, the residence located at 11251 Knotty Pine Drive in New Port Richey, Florida (the “Fish Residence”), experienced structural damage from subsidence in the ground underlying the home. As a result, a claim was made to Fish’s insurance company, and an investigation was commenced. Central Florida Testing Laboratories, Inc. (“CFTL”), a geotechnical engineering firm, performed an in-depth analysis and found, in a signed, sealed, and dated engineering report issued on November 20, 2007, that the subsidence was likely caused by a number of factors, including sinkhole activity. As a result, the Fishes hired a contractor, Champion Foundation Repair (“Champion”) to remediate the damage. Champion hired Respondent to perform the engineering services necessary to obtain a permit for the remediation, inspect the construction, and complete a report certifying the adequate completion of the work. Respondent had a long history of providing similar services to Champion in the past, having performed engineering services in over 200 projects for Champion. Respondent created, signed, sealed, and dated on April 20, 2008, a Settlement Stabilization Plan (“Plan”), which formed the design basis for the work Champion carried out. Well into the project, the Fishes became dissatisfied with the work done by Champion. Champion was terminated as the contractor before the work was finalized and before Respondent was able to perform a final inspection of the property. Litigation was commenced and Bracken Engineering (“Bracken”), a forensic structural/civil engineering firm was engaged to perform an investigation of the work performed by Champion and Respondent for the pending litigation. Bracken issued a lengthy engineering report (“Bracken Report”), under engineering seal, on June 20, 2011. The Bracken Report found Respondent’s Plan deficient, that Respondent was not adequately knowledgeable about the site, that Champion’s implementation of the Plan, and Champion’s construction work as a whole was flawed and inadequate. Subsequent to the issuance of the Bracken Report, a complaint was filed with the Board, and these proceedings were initiated. Settlement Stabilization Plan for the Fish Residence Roger Jeffery opined that the Plan failed to meet required engineering standards. The parties agree that when a structure, such as the Fish Residence Project, is initially built, the loads are directly transferred to the foundation, which then transfers the loads directly and uniformly as a continuously supported structure to the underlying soil. However, when, as occurred in this case, the structure’s loads are no longer transferred directly and uniformly to the ground through the foundation, but are transferred through pins which underlie the foundation, the foundation itself now acts as a beam or beams and is subject to the stresses applied to the beams. Respondent asserted that the foundation load would remain continuous, and therefore stable, since grouting had been poured under the Fish Residence to consolidate and stabilize the soils. However, Respondent’s plan did not call for grouting to be used. Moreover, according to the Bracken Report, no grouting was ever placed under the Fish Residence, even though it was called for in the CFTL Report to stabilize the structure. Respondent’s failure to perform a final inspection resulted in an inaccurate assumption and opinion. Respondent’s claim that grouting placed in the void under the structure reconstituted the original soil conditions is rejected, especially in light of the fact that Respondent also analyzed the pins and foundation in a beam configuration--a simple span beam. Further, Respondent’s analysis must be discounted because the calculations justifying his conclusion that the structure was adequately supported was performed in December 2013, well after these proceedings commenced and more than five years after the Plan had been created by Respondent. As a result of the changed structural support system (from ground support to pins), the position of the pins is critical to the stability of the structure. If the pins are too far apart for the strength of the foundation’s materials to accommodate the foundation, now acting as a beam or beams, the foundation will be overstressed. Cracking, at a minimum, or collapse, at a maximum, can occur. Cracking or collapse can occur because the concrete slab foundation used at the Fish Residence does not have any existing top reinforcing steel in it. When asked if perhaps reinforcing steel might have been placed within the slab itself, Mr. Jeffery stated he had never seen such use of steel in over 40 years. No evidence to support the steel within the slab theory was presented. When the newly installed pins become the structural support, a negative bending moment is introduced to the top of the foundation, now acting as a beam. The top of the foundation is made only of concrete, which has little ability to resist the induced negative moment. As a result, deflection, racking, and ultimate failure will be the result if the pin placement and the spans created by the placement are inadequately designed. Respondent’s after-the-fact calculations do not address this issue. Using a continuous beam analysis, the preferred method to evaluate the beam/pin assemblage design in structures like the Fish Residence, the spacing of the pins (usually ten feet apart) designed by Respondent coupled with the loads generated by the foundation and the lack of reinforcing steel in the top portion of the foundation would result in stress that would exceed the strength of the concrete and, at a minimum, the concrete would eventually crack. Dr. Ahmed Said, Respondent’s expert, agreed with this conclusion. Even using a simple beam analysis, the design method Respondent testified he used and that Dr. Said agreed was commonly used, movement, resulting in cracks at the foundation slab, would occur. Again, since no reinforcing steel exists at the top of the slab, as a matter of simple physics, the concrete would have to respond to the deflection that would occur at the bottom of the foundation and, concrete being weak, would likely crack or worse at the top. Respondent provided no persuasive rebuttal to Mr. Jeffery’s analysis. First, Respondent claimed that elevations taken at the site in 2013 showed minimal deflective movement, proving the Plan design was sufficient. However, Mr. Jeffery noted that subsequent elevations taken at the completed structure would have little meaning regarding the adequacy of the design since: the design stands alone and is not affected by how the contractor implemented it; and no one could know whether the design, as constructed, would withstand the required stresses until it was subjected to full design loading, which would have to include the full wind loads to which the structure was designed. There is no evidence the structure was ever subjected to such stress in the period between its construction in 2008 and the later recorded elevations. Next, Respondent claimed the 3-foot “spreaders” attached to the pins would reduce the span of the foundation acting as a beam and thus would overcome the lack of reinforcing steel in the top of the foundation and the resulting overstress. The problem with this assertion is that the Plan does not call for “spreaders” to be placed in the design by any notations that are readily and universally cognizable. Respondent admitted that the symbol regarding the use of the spreaders was agreed to only between Champion and him, and was not included in the Plan. However, even if the notations used by Respondent could be interpreted as calling for the use of the “spreaders,” the “spreaders” would not materially impact the fact that the foundation, acting as a beam, would be overstressed, since a negative moment would still exist due to the lack of reinforcing steel at the top of the foundation. Finally, Respondent asserted that Mr. Jeffery’s analysis was flawed since Mr. Jeffery had assumed the Fish Residence was a masonry structure whereas Respondent claimed the structure was a wood frame covered with a stucco exterior. This issue is confused by the fact that both the CFTL and Bracken Reports, upon which Mr. Jeffery relied, both stated the Fish Residence was a masonry structure, although the CFTL Report notes the structure was initially constructed as wood frame. In any event, Mr. Jeffery testified that regardless of the masonry versus wood frame question, the structure would still be overstressed. Changing the construction from masonry to wood frame/stucco veneer might lessen the overstress, but not materially. In addition to the overstress created by failing to address the induced negative moment at the top of the foundation, Respondent’s design also resulted in a shear load which exceeded the maximum allowable under the American Concrete Institute 318 Concrete Code; and, since that code is incorporated into the Florida Building Code (“FBC”), the requirements of the FBC as well. The shear load factor is especially relevant since Respondent did not assure that the pins would not be placed under windows and doors where this issue is critical. Respondent did not address the shear issue as it applied to windows and doors in his after-the-fact calculations. The Plan is also deficient since it did not indicate the placement of windows and doors in the Fish Residence Project. By not doing so, the pins, when put in the ground, could be placed underneath these internal spaces which do not then form a continuous roof/wall/foundation assembly. If that occurred, and it apparently did in the Fish Residence on four occasions, the shear problem described above is exacerbated, since at either side of a door or window a point load is created and the shear stress increased. The Plan also fails to include required information. While the Plan calls for the use of a “FastSteel” product, the Plan does not include any product specification number or the strength of the material to be used. Although Respondent stated that the contractor, based upon its experience, knew what was intended, ultimately Respondent admitted that the required information was not in the Plan. Similarly, the Plan did not include the design loads and criteria used in the design and provided no building codes and standards. Respondent admitted the Plan lacked this required information. The missing information is important. Only by including such information on design documents can the engineer adequately communicate to the reviewing building code plans examiner or a contractor what the design engineer intended. By not including this required information, the reviewer can be uncertain as to whether the engineer used the correct loadings or designed the structure in accordance with the correct edition of the building code. Similarly, failing to provide sufficient information concerning the products to be used may lead a contractor to utilize the wrong product during construction. The Plan was submitted to Pasco County for issuance of a permit. The county building department issued a permit for the work to be performed. Mike Mosher of Champion believed the Plan included all the specifications he needed to identify the components to be used and the manner in which the work was to be performed. He also testified the work was completed consistent with the Plan. The June 10, 2008, Certification Letter Respondent issued the June 10, 2008 Certification Letter (“Letter”) under seal to his client before he completed the inspections necessary for the conclusions in the Letter to accurately reflect the opinions contained in it. Both Respondent and his client, Champion, agree that since the client had been denied access to the Fish Residence Project, no final inspection of the site by Respondent ever occurred. As a result, Respondent admitted that, when he signed, sealed, and issued the Letter, the engineering services, upon which the certification in the Letter was based, had not yet occurred. The evidence proved that Respondent’s last appearance at the Fish Residence Project occurred on or about May 5, 2008, and that most of the work done at the site occurred after that date with the final construction finishing on or about May 30, 2008. As a result, the conclusions and opinions contained in the Letter were not based upon accurate and contemporaneous engineering analysis. Since the Letter purports to be grounded in engineering inspections, the statements in the Letter were not fully based upon the services Respondent actually provided. While not entirely clear from the evidence and testimony, had Respondent had the ability to perform a final inspection, he would have had the opportunity to discover several deficiencies in the construction. The Bracken Report detailed several deficiencies and non-conformances with the Remediation Plan. These deficiencies included: 1) failure to drive 5/6ths of the pilings to the depth prescribed by the notes to the Plan; a large number of pins found beneath door and window openings; mis-installation of pins and pin assemblages; and 4) no grouting placed in the ground although Respondent intended that grouting be used. Respondent agreed that at least some of the Bracken Report conclusions were warranted. Respondent asserts that, although the Letter was issued prematurely, Respondent should not be held accountable since the Letter “never went public.” This contention is rejected. The Letter was a final engineering report/certification and, upon issuance to Respondent’s client, Champion, was fully subject to all engineering standards, rules, and statutes. Since the Letter contained conclusions that were inaccurate and based upon information that was not collected under Respondent’s direct supervision, issuance of the Letter constituted negligence and misconduct in the practice of engineering. Respondent’s Prior History of Discipline Respondent has previously had discipline imposed. The instant case is the first in more than 40 years of Respondent practicing engineering that involved a subsidence remediation plan. Respondent’s first prior discipline was in FEMC Case No. 00-0086. In that case, Respondent was hired to correct building code issues identified by a county building department. The drawings he made violated the building code requirements, contained deficiencies, and were not in compliance with the standard practice of engineering. Respondent proceeded to hearing without benefit of legal counsel. A final order was entered by the Board reprimanding his license, fining him $1,000, plus costs of $302.93, placing him on probation for one year, and requiring he complete a course in professionalism and ethics while on probation. Respondent’s second prior discipline was in FEMC Case No. 01-0079. That matter was based upon drawings that were dated February 16, 2001. Respondent was not represented by counsel in that proceeding. In that proceeding, no proof was presented that the structure depicted in the plans by Respondent was ever built. Therefore, no direct risk of harm to the public was proven. Respondent entered into a Settlement Stipulation in that matter which was approved by the Board of Professional Engineers. He agreed to pay a total administrative fine of $7,000, plus $316.67 in costs and receive a reprimand on his license. He also received a one-year suspension of his license, followed by two years’ probation, and continuing education requirements. The other instance of discipline imposed against Respondent was in FEMC Case No. 2004037005. That complaint arose from plans that were signed by Respondent in June 2004. He was charged with signing plans he had not personally prepared or were not prepared under his supervision. Respondent entered into a Settlement Stipulation in that case that was approved by the Board. He paid a $5,000 administrative fine and costs of $750; received a reprimand on his license; received two years of probation; and was required to make detailed reporting to the FEMC during the probationary period. No additional evidence of prior disciplinary matters was offered other than the three cases described above.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent Oliver Turzak’s Professional Engineer license be reprimanded, and that the license shall be suspended for a period of one year. Upon termination of the suspension, Respondent shall be reinstated under terms and conditions of reinstatement as the Board determines are appropriate, including two years of probation with terms the Board deems appropriate. Respondent shall also be fined $1,000 per count ($2,000 total fine). Finally, Petitioner shall be entitled to assess costs which are related to the investigation and prosecution of this case, other than costs or fees associated with an attorney’s time, as provided in section 455.227(3), Florida Statutes. DONE AND ENTERED this 6th day of May, 2014, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2014. COPIES FURNISHED: Zana Raybon, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303 Michael Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 David P. Rankin, Esquire Law Office of David P. Rankin, P.A. 18540 North Dale Mabry Highway Lutz, Florida 33548 John Jefferson Rimes, III, Esquire Florida Engineers Management Corporation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Section 489.129(1)(d) and (m), Florida Statutes. At the hearing in this case, the Petitioner presented the testimony of two witnesses and offered three exhibits, all of which were received in evidence. The Respondent testified on his own behalf, presented the testimony of one other witness, and offered three exhibits, all of which were received in evidence. At the conclusion of the hearing the parties were granted twenty days from the date of the filing of the transcript within which to file their proposed recommended orders. The transcript was filed on October 12, 1987, which made the proposed recommended orders due on November 2, 1987. On November 2, 1987, the Petitioner filed a proposed recommended order. On November 3, 1987, the attorney for the Respondent advised the Hearing Officer by telephone that his proposed recommended order would be late, but that it would be filed within the next day or two. As of the date of this recommended order, the Respondent has not filed a proposed recommended order or any other posthearing document. My specific rulings on the findings of fact proposed by the Petitioner are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. Findings based on admissions Petitioner is the State agency charged with regulating the practice of contracting, pursuant to Section 20.30 and Chapter 455, Florida Statutes. At all times relevant hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered general contractor. At all times relevant hereto, Respondent had been issued by said Board, and held, license number RG-S013131. Respondent's address of record is in Jacksonville, Florida. Respondent did, through the contracting business Respondent was then associated with and responsible for in his capacity as a licensed contractor, contract with Marcel R. Poirier, hereinafter referred to as the "Customer," to perform certain contracting work for the Customer. The details of the contracted work were generally as follows: Contract entered into on or about: 1-86 Contracted price: $10,655 Job located in: Jacksonville, Florida Job generally consisted of: remodeling a house Respondent's said contracting business thereafter began said job. In prior case number 74096, the probable cause panel of the State Construction Board, found that there was probable cause to believe that Respondent had committed a disciplinary violation of Chapter 489, and Respondent was sent a letter of guidance on or about 12-12-87 (sic). Findings based on the evidence adduced at the hearing The Building Code of the City of Jacksonville contains the following relevant provisions: 320.502 Inspection Request. It shall be the responsibility of the holder of a permit to make a request to the Building and Zoning Inspection Division for the mandatory inspections required by s. 320.504. . . . 320.504 Mandatory inspections. No work shall be done on any part of a building or structure or a plumbing, electrical or mechanical installation beyond the point indicated in this section for each successive inspection until the inspection has been made and the work included therein has been approved by the Building Official. It shall be unlawful to lath, seal or otherwise conceal or cover work for which an inspection is required until it has been inspected and approved by the Building Official. With respect to construction inspections: (4) frame inspection shall be made at each floor level and after all framing, fire blocking, furring and bracing are in place and plumbing and electrical work are roughed in. With respect to electrical inspections: rough inspection shall be made after all rough electrical construction which will be concealed by other construction has been completed and all plumbing, piping and other systems are installed. . . . final inspection shall be made after all electrical construction has been completed. . . . Section 320.504 of the Building Code of the City of Jacksonville contains requirements for mandatory "final" inspections of the electrical, plumbing, and mechanical aspects of a construction project, but it does not provide for a mandatory "final" inspection of the structural construction following the several mandatory inspections at progressive stages of the structural construction. Respondent's contract with the Customer was to build a shelled-in addition to the Customer's residence. Respondent's contract did not include any electrical or plumbing work and did not include covering the interior side of the framing. When Respondent finished all of his work under the contract the framing was still open and visible for inspection and the rough electrical construction had not been started. After Respondent finished all of his work under the contract, the Customer planned to do the electrical construction and to then close in the interior walls. Pursuant to Section 320.504(a)(4) of the Building Code of the City of Jacksonville, the electrical work should be roughed in before calling for the frame inspection. The Respondent did not think he was required to request a frame inspection because when he finished all of the work under his contract, the structure was not ready for a frame inspection inasmuch as the electrical work (a responsibility of the Customer) had not been roughed in. Neither the Respondent not anyone on his behalf requested a frame inspection. Respondent completed all work on the subject contract and received his final payment on April 15, 1986. Shortly before that date, the Customer had called a building inspector for a consultation regarding the construction project and, as a result of that consultation, the building inspector suggested that a portion of the roof construction be modified. The Customer communicated this suggestion to the Respondent and the suggested modification was made. The Respondent's foreman believed, albeit erroneously, that the consultation which resulted in the suggestion that a portion of the roof construction be modified was the frame inspection. The foreman's erroneous belief was based in part on the fact that at the time of the consultation, all of the framing was finished and all of the framing was still open and available for inspection.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order dismissing all charges against the Respondent. DONE AND ENTERED this 30th day of November, 1987, at Tallahassee, Florida. Michael M. 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 30th day of November, 1987. APPENDIX TO RECOMMENDED ORDER The following are my specific rulings on each of the findings of fact proposed by the parties. Findings proposed by Petitioner: Paragraphs 1, 2, 3, 4, 5, and 6: Accepted. Paragraphs 7 and 8: Accepted in substance, but with additional findings in the interest of clarity and accuracy. Findings proposed by Respondent: (None) COPIES FURNISHED: G. VINCENT SOTO, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 WILLIAM T. LASSITER, ESQUIRE 720 NORTH OCEAN STREET JACKSONVILLE, FLORIDA 32202 MR. TOM GALLAGHER, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 MR. FRED SEELY, EXECUTIVE DIRECTOR CONSTRUCTION INDUSTRY LICENSING BOARD POST OFFICE BOX 2 JACKSONVILLE, FLORIDA 32201
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 issues in this case are whether certain questions within the June 2002 construction building contractor examination are invalid, and whether Petitioner should receive credit for certain answers scored as incorrect.
Findings Of Fact In June 2002, Petitioner sat for the construction building contractor examination. Shortly following the exam, Petitioner was advised that he incorrectly answered 17 of the 50 exam questions and did not attain the minimum passing score of 70 percent, but received a failing scaled score of 66 percent. Petitioner timely challenged the validity and scoring of eight questions, including questions 8, 14, 17, 33, 34, 38, 43, and 44. In order for Petitioner to acquire a passing score, Petitioner must prove that certain challenged questions are invalid or demonstrate that he is entitled to receive credit for his answers. Specifically, Petitioner must demonstrate that either three questions should be stricken from the exam providing Petitioner with 70.2 percent, two questions should be stricken and one answer scored as correct providing Petitioner with 70.8 percent or two answers should scored as correct providing Petitioner with 70 percent. QUESTION 8 Exam Question 8 asks, "According to AIA-A201, who determines the interest rate that the contractor can charge on due and unpaid payments?" Petitioner's expert, Mr. Uman, argues that the parties to the contract are not defined within the question and it is therefore misleading. However, the credited answer D, "all the parties must agree on the rate" is within the provided reference material and is clearly the best answer. It is not misleading and Petitioner's argument lacks merit. In addition, 89.47 percent of the test-takers correctly answered Question 8. QUESTION 14 Exam Question 14 is wordy and involves computations. It requires the test-taker to calculate the number of "labor" hours required per 100 pieces to build a wall, given certain pricing and wall construction information. Question 14 is ambiguous and confusing on its face. While the question asks for labor hours, the facts provide a fixed combined hourly cost for a mason and laborer's hour. There is no distinction made between "labor" hours and a "laborer's" hours. Mr. Collier admitted that there is some apparent confusion between "labor" costs and the "laborer's" costs. Mr. Palm further agreed and indicated that he fully understood Petitioner's rationale to divide the labor costs in half and choose answer A. Furthermore, it is clear that Petitioner's perception of the question was not unique. In fact, only 46.62 percent of the test-takers correctly answered Question 14. QUESTION 17 Exam Question 17 asks, "During the bid process, which document has priority in the event of conflicting information?" Clearly, the correct answer is B, "addenda." Petitioner's argument regarding "competitively bid projects" is without merit. Mr. Palm succinctly explained that Petitioner's selection was obviously incorrect because "plans don't change during the bid process unless there is an addenda issued." Moreover, 75.56 percent of the test-takers correctly answered Question 17. QUESTION 33 Exam Question 33 identifies a situation that where drawings differ from written specifications and where there is no legal precedent that one is more binding than the other. The question specifically calls for the best procedure according to the listed and available reference. While Mr. Uman argues that the answer does not appear within the reference material in a clear manner, the exact text of the question and answer are in fact within the material. Petitioner's argument lacks credibility. QUESTION 34 Exam Question 34 asks the test-taker "what is the EARLIEST workday for completing the masonry work?" given the number of crew, the number of hours required, and the ratio constant of the crew. Although 80.45 percent of the test-takers correctly answered Question 34, Mr. Uman argues that the question could have been answered without reference to the Builder's Guide to Accounting material and therefore, was misleading. Petitioner's argument is devoid of common sense. QUESTION 38 Exam Question 38 asks the test-taker to identify the activity that "a specialty structural contractor is qualified" to perform. Petitioner's expert, Mr. Uman, again argues that the question is misleading since the credited correct answer "perform non-structural work" is not written verbatim in the provided reference material. To the contrary however, all of the alternative choices are clearly listed in the reference material as activities specifically prohibited by specialty structure contractors. Furthermore, page 2B17 to 61G415.015 of the Contractor's Manual specifically states that: The specialty structure contractor whose services are limited shall not perform any work that alters the structural integrity of the building including but not limited to roof trusses. Respondent's experts, Mr. Collier and Mr. Palm, agree that Question 38 is clear. Moreover, 53.38 percent of test- takers correctly answered the question. While the question appears to require enhanced reasoning skills and is generally more difficult, it is not misleading. Petitioner's assertions are without merit. QUESTION 43 Exam Question 43 asks, "Which accounting method should be used by a contractor if the contractor is unable to reasonably estimate the amount of progress to date on a job or the total costs remaining to fulfill the contract?" Mr. Uman argues that the question is ambiguous and the reference material is "not terribly clear." He further alleges that when a contractor cannot estimate progress, the contractor cannot establish a "completed contract method," the credited correct answer. Respondent's experts disagree. While it is true that Mr. Palm agreed that all of the choices are accounting methods which is inconsistent with Mr. Collier's testimony, the reference material is clear. In fact, 58.65 percent of the test-takers correctly answered Question 43. Petitioner presented insufficient evidence that he should receive credit for his answer or that Question 43 should be invalidated. QUESTION 44 Exam Question 44 provides detailed information regarding a standard form contract and asks, "Based ONLY on the information given above, what is the amount of the current payment due?" In addition, however, as Mr. Uman points out, the standard form referred to in the problem was mistakenly misidentified as Form 201 instead of Form 702. While it is clear that the referenced form was mislabeled, the precise form number was incidental, unrelated to the question, and unnecessary to compute the answer. In fact, Mr. Palm explains that the problem was "just a mathematical exercise." According to Mr. Collier, the question was not misleading, and the incorrect reference was irrelevant. "It's simple math, industry knowledge." Furthermore, Petitioner's answer is clearly incorrect because "he failed to deduct the retainage." Finally, 54.89 percent of the test-takers correctly answered Question 44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered invalidating only Question 14, re-computing Petitioner's examination score, and dismissing his challenge. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2003. COPIES FURNISHED: Nickolas Ekonomides, Esquire 791 Bayway Boulevard Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
