Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent George W. Morrison was a registered residential contractor holding license number RR 0021945. On April 28, 1979, respondent entered into a contract with T. Joseph Feeney to construct a residence and pool on Sanibel Island "according to plans and specifications approved and signed by both parties" for the sum of $100,200.00. Construction on the residence was begun by respondent in late August, 1979. In January, the Feeneys desired to move into the home because they were having difficulty locating rental property. At that time, construction was not completed and neither a final inspection nor a Certificate of Occupancy had been obtained. Although construction had not yet been completed and respondent advised Mr. Feeney that it would be against the law to move into the house before a Certificate of Occupancy was obtained, Mr. Feeney and his family moved into the house on or about January 12, 1980. During the first week of occupancy, Mr. Feeney noticed that there was a sag in the bearing wall of the kitchen and that the house "swayed considerably." According to Mr. Feeney, after he was advised by Mr. Benson, a structural engineer, to either move out of the house or to "shore the house up, he attempted to contact the respondent. Mr. Feeney could not recall whether this occurred in late January, February or March of 1980. Being unable to contact the respondent, Mr. Feeney found his carpenter, Doug Hale, and explained the problem to him. Hale saw respondent that same day and respondent instructed Hale and his crew to go out to the Feeney residence that afternoon and shore the house up. Mr. Hale did notice a deflection and observed that one span was sagging down a small amount. He observed that the bridging work had been nailed from the top and recalled that the bottom nailing was to be performed after the house had settled. When performing the preventive shoring, Mr. Hale noticed that the bolts had been properly installed with washers. The bolts would have been retightened after the wood had dried and before calling in for a final inspection. Upon learning of the structural deficiencies in the Feeney residence, respondent hired his own structural engineer, Charles Wunder, and took the plans and specifications for the Feeney residence to him. Mr. Wunder found that the original drawings, plans and specifications caused the deflection problem in that the framing members used for the ledger beams were not of sufficient strength to hold up in the area where they were placed. Wonder's remedial plan was to use additional beam supports and steel flitch plates. He so advised the respondent by a letter dated February 12, 1980 and an attached sketch for the remedial work. After receiving Mr. Wunder's plans to remedy the structural defects, respondent ordered the steel plates and had them delivered to the Feeney residence. When respondent went there to perform the work, Mr. Feeney informed him that he wanted the work performed according to Mr. Benson's plans and blueprints. Benson's plans were much more involved and extensive, and respondent did not have the materials available to perform the work. Thereafter, an impasse occurred between Mr. Feeney and the respondent as to the manner in which the structural remedial work should be performed, and respondent was terminated by Mr. Feeney on or about April 13, 1980. Both respondent and his engineer, Mr. Wonder, believed that Mr. Benson's plans were "overdesigned" and massive compared to what needed to be done to make the residence structurally sound. Respondent testified that his engineer's plans for remediation would result in a cost of about $1,000.00. Mr. Feeney testified that he incurred costs of approximately $21,000.00 to have the remediation work performed according to Mr. Benson's plans. There was evidence that at least a portion of this figure was attributable to decorative and swimming pool work, as opposed to structural work. In late February or early March, 1980, after the preventive shoring had been completed by Doug Hale, the Building Official for Sanibel, George E. Blain, inspected the Feeney residence at Mr. Feeney's request. Mr. Blain found that the flooring and joist system had been installed according to the plans and specifications submitted and approved for the building permit. He could not give an opinion as to the cause of the deflection of the beams, but felt that there appeared to be a problem with the construction which could be corrected in the normal construction phase. A violation of the Southern Standard Building Code would occur only if the problem were not corrected at the time of final inspection, and this project had not yet been called up for such final inspection. While Mr. Blain found that some of the bolts were not properly placed or tightened at the time of his inspection, he found nothing to indicate that the required number of nails were not in place. After his inspection, Mrs. Blain wrote a letter to the respondent expressing his opinion that extensive remedial work was necessary to stabilize the floor support system of the Feeney residence. Respondent was instructed to have a registered engineer examine the floor support system and submit a report detailing the requirements necessary for loads stability. This report was to be received by Mr. Blain's office prior to the commencement of any corrective work by the respondent. Mr. Blain never received a response from the respondent to his March 5, 1980 letter. Respondent explained that he did not receive this letter from Mr. Blain until some time near the time that he and Mr. Feeney had reached an impasse situation with regard to the manner in which the remedial work was to be done. He therefore did not respond to Mr. Blain's letter because he did not believe that he would be performing the work.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against George Morrison on March 8, 1982, be DISMISSED. Respectfully submitted and entered this 10th day of March, 1983, in Tallahassee, Florida. DIANE D. TREMOR, 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 10th day of March, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street (Suite 204) Tallahassee, Florida 32301 Allan T. Griffith, Esquire Griffith & Griffith, P.A. 9150 S. Cleveland Ave. (Suite 1) Ft. Myers, Florida 33907 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether Respondent, Garry Vermaas, Ph.D., P.E., committed the acts alleged in the Administrative Complaint (as submitted in the parties' joint pre-hearing submission).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: At all times material to the allegations in the Administrative Complaint, Respondent was a licensed professional engineer with License No. PE 61163. Respondent was the structural engineer of record for a 13-unit apartment building complex located at 214 Salamanca Avenue, Coral Gables, Florida. As such, on or about January 24, 2007, Respondent signed and sealed the last iteration of structural engineering documents for the project which were filed with the City of Coral Gables, Florida, as part of the application for a building permit. Respondent was the structural engineer of record for the above-referenced project as that term is used in Florida Administrative Code Rule 61G15-31. Petitioner is charged with providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers pursuant to Subsection 471.038(4), Florida Statutes. The Florida Board of Professional Engineers regulates the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes. The Administrative Complaint alleges that Respondent's structural engineering plans were deficient and failed to comply with acceptable standards of engineering practice, citing five instances: The masonry wall on Gridline A at the first level is not adequately designed in that it is overstressed when compared to the Florida Building Code specified wind loads. The block parapet walls at Elevation +49 and +53 are, also, not adequately designed insofar as they are overstressed when compared to the Florida Building Code specified wind loads. Wall Sections A and B on Sheet 1.10 show tapered balcony slabs with a one-inch step. The wall sections are inconsistent with the Typical Cantilever Balcony Detail on Sheet S2.01 and reduce the cover on the tendon to less than one inch required by the Florida Building Code. The placement of reinforcing bars in the bottom of the cantilevered balcony slabs on Sheets S2.02, S2.04 and S2.06 cannot be reasonably determined from the information on these sheets. Sheet S2.10 shows that the stair adjacent to the elevator must rise from the fourth floor at Elevation +35 to the level of the pool deck at Elevation +49. This is a rise of 14 feet and contrasts with the stair at Gridline A which rises from the fourth floor and terminates at the fifth floor at Elevation +45. As a result, the stair adjacent to the elevator requires an additional stair run and a landing neither of which have been addressed in Respondent's design documents. The masonry wall on Gridline A at the first level is not adequately designed in that it is overstressed when compared to the Florida Building Code specified wind loads. On Sheets S1.03 and S1.04 Respondent's structural engineering plans show a concrete masonry wall at Gridline A extending from reference lines 1.1 to 1.8 on the west side of the building; the floor-to-floor distance is 15 feet. The wall is subject to appreciable gravity load from above through vertical connective rebar. Post tension design of the floor system is unique; when the post tension concrete slab deflects, the vertical rebar will transfer the load to the wall in question. As a result of this loading, the subject wall receives loading in more than one direction and should be defined as a main wind force resisting system and should be designed as it is in Respondent's plans. The suggestion by Petitioner's experts that the wall is overstressed by 22 or 65 percent is a result of applying conservative values and failing to include the vertical load on the wall. Within the conservative and non-conservative values allowed by the Florida Building Code, there could be a 400-percent yield difference. The conclusion that the wall is overstressed by 22 or 65 percent does not prove negligence. The block parapet walls at Elevation +49 and +53 are not adequately designed insofar as they are overstressed when compared to the Florida Building Code specified wind loads. Average vertical bar spacing, as used by Respondent in the design of the subject parapet walls, is allowed by the Florida Building Code and is called the "plate" method of design. Petitioner's experts used calculations based on the "strip" method, also allowed by the Florida Building Code. The resulting suggestion that the parapet walls are overstressed by 24 or 62 percent is a result of the differences in analysis of the two methods and the application of conservative values. As stated above, the application of conservative or non- conservative values can result in a 400-percent yield differential. Wall Sections A and B on Sheet 1.10 show tapered balcony slabs with a one-inch step. The Wall Sections are inconsistent with the Typical Cantilever Balcony Detail on Sheet S2.01 and reduce the cover on the tendon to less than one inch required by the Florida Building Code. The subject wall sections are full wall sections and are not inconsistent, but demonstrate, generally, what the wall will look like. The slab design does not remain constant. The Typical Cantilever Balcony Detail on Sheet S2.01 shows that the post tension slab steps down at the top and bottom. The one-inch step-down prevents wind-driven rain from flowing in from outdoors. The resultant one-inch step-down on the bottom of the slab relates to maintaining proper clearance on the tendon. The detail (Typical Cantilever Balcony Detail on Sheet S2.01) demonstrates the one-inch step-down and would not be confused by an experienced post-tension subcontractor. The plans consistently refer to an eight-inch slab. The placement of reinforcing bars in the bottom of the cantilevered balcony slabs on Sheets S2.02, S2.04 and S2.06 cannot be reasonably determined from the information on these sheets. The exact placement of mild reinforcement in post tension design is not important. These plans are adequate in that they label the location of the bars (top or bottom) and clearly describe how the bars should be distributed. This item, according to Petitioner's expert, is not related to design, but to drawing preparation. Testimony revealed that the information used is imported through AutoCad software. These notes are clearly understandable to someone experienced with post tension design and construction. Sheet S2.10 shows that the stair adjacent to the elevator must rise from the fourth floor at Elevation +35 to the level of the pool deck at Elevation +49. This is a rise of 14 feet and contrasts with the stair at Gridline A, which rises from the fourth floor and terminates at the fifth floor at Elevation +45. As a result, the stair adjacent to the elevator requires an additional stair run and a landing neither of which have been addressed in Respondent's design documents. There is a similar staircase from the ground floor to the fifth floor elevation. An ancillary detail, Section G on Sheet S1.13 shows how to get from the fifth floor slab to the pool deck. Section G has three different staircases that show the contractor how the stairs should be constructed. The additional stair run is addressed on this section. The design and drawings comply with Section 1603.1 of the Florida Building Code, which states that "[t]he design loads and other information pertinent to the structural design required by Sections 1603.1. through 1603.1.8 shall be clearly indicated on the construction documents." Drawing presentations and which portions of the structure require more detail, is largely an opinion matter for each engineer to decide as long as he complies with the Florida Building Code. Respondent's expert witness, each of whom had excellent credentials and vast experience with post-tension design of floor systems, opined that Respondent's structural engineering documents for the subject project were not negligent in any way, and Respondent's drawings and calculations conform to acceptable engineering standards and safeguard the life, health, property and welfare of the public. Their testimony on the five alleged areas of negligence and their general conclusions are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Board of Professional Engineers, issue a final order dismissing the Administrative Complaint filed against Respondent, Garry Vermaas, Ph.D., P.E. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2009. COPIES FURNISHED: Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 N Monroe Street Tallahassee, Florida 32399-0792 John Jefferson Rimes, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Garry Vermaas Ground Floor Engineering 10125 West Colonial Boulevard, Suite 212 Ocoee, Florida 34761 Patrick Creehan, Esquire Chief Prosecuting Attorney Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267
The Issue Whether Petitioner is entitled to attorneys? fees and costs as a prevailing small business party pursuant to section 57.111, Florida Statutes, and if so, in what amount.
Findings Of Fact On or about January 14, 2011, an application to construct a swimming pool and spa with screen enclosure was filed with the City of Deland by Bill Coody Custom Pools (Coody), a construction contractor. The application was reviewed by Mr. Joe Crum, a Deland building official involved with construction permit approval. Mr. Crum rejected the application because the design criteria and details for the design of the screen enclosure appeared to constitute a master design manual, but did not indicate that the documents had been peer-reviewed and did not indicate the required training for users of the manual. A master design manual is a generic engineering package prepared by a licensed engineer or architect, which provides engineering guidance for construction when used along with a contractor?s own site-specific design drawing. The documents submitted to Mr. Crum included generic load and span tables for various framing elements and generic construction details for screen enclosures, and appeared to leave selection of various elements to contractors depending on the site-specific design. The documents had been provided to Coody by Mr. Frank Cleaton, P.E. Mr. Crum contacted Mr. Cleaton on or about January 24, 2011, about the failure of the documents to meet the requirements for master-design-manual engineering. After Mr. Crum?s inquiry, Mr. Cleaton prepared a letter dated January 26, 2011, authorizing Coody to use “my sealed engineering set of design criteria and details for the design of aluminum structures.” The letter further provided in relevant part: In accordance with Florida Statute 489.113(9), this sealed engineering set is intended to be used as a reference in conjunction with the contractor?s own site- specific design drawing. The contractor?s drawing is not required to be sealed by me as the engineer of record as per FS 489.113(9). It is only required to be in compliance with what is set forth in my sealed design set. Design documents for the 135 Birchmont Drive screen enclosure were also signed and sealed by Mr. Cleaton on January 26, 2011, after the inquiry from Mr. Crum. These included only one site- specific document. All other drawings contained the same generic load and span tables, with some elements of those tables circled or otherwise identified for incorporation into the Birchmont structure. The site-specific drawings for the Birchmont screen enclosure were submitted with a permit application filed by Coody. According to the drawings of the Birchmont screen enclosure, the structure is less than 1,200 square feet in area and less than one story in height. The Florida Engineers Management Corporation (FEMC) provides administrative, investigative, and prosecutorial services to the Board of Professional Engineers. On or about February 9, 2011, FEMC received an e-mail from Mr. Crum alleging that Davis and Cleaton Engineering was providing a master design manual for aluminum structures that did not meet statutory requirements for the use of master design manuals. The following day, Ms. Wendy Anderson,1/ an investigator for FEMC, requested additional information from Mr. Crum. On or about February 11, 2011, at about 11:47 a.m., FEMC received an e-mail from Mr. Crum referencing "improper master file engineering." Attached to the e-mail was a copy of the permit application package for the screen enclosure located at 135 Birchmont Drive, Deland, Florida, that had been submitted to the Deland Building Department by Coody. The permit application package included documents signed and sealed by Frank Cleaton, P.E. The documents provided to FEMC by Mr. Crum did not identify any third-party peer reviewer or detail the training requirements for those using the manual. The determination that there was enough information to open an investigation was made by Ms. Anderson in consultation with the FEMC prosecutor, Mr. John Rimes. FEMC had reasonable cause to believe that Mr. Cleaton had violated section 489.113(9), Florida Statutes (2010), based upon the e-mails from Mr. Crum and the documents he provided. After receiving the copy of the "file with the improper master engineering," Ms. Anderson opened a Complaint File with FEMC, Case No. 2011007349. On March 22, 2011, Ms. Anderson provided notice of the investigation to Mr. Cleaton. The only formal pre-Probable Cause Panel notification given to Mr. Cleaton of any pending complaint regarding the design for the Birchmont project was the letter sent on March 22, 2011. The March 22, 2011, letter from Ms. Anderson advised Mr. Cleaton that he had the option to submit a written response to the complaint for consideration by legal staff and the Probable Cause Panel (PCP) of the Board. It also advised him that he could submit a written request for a copy of the investigative file that would be provided to him once the investigation was complete. Mr. Cleaton never requested that he be provided a copy of the investigative file. A letter dated March 31, 2011, from Mr. Cleaton to Ms. Anderson was received by FEMC on or about April 11, 2011. The letter stated that Mr. Cleaton had “clearly and specifically told the building department” that the package was not to be considered a master design manual. The response also stated that a “signed and sealed drawing” had been provided “as if it were” a site-specific project. The letter concluded by saying that no further “packages” would be issued until the matter was resolved, and that if necessary, Mr. Cleaton would “participate in a peer review.” The construction documents that had been given to Coody appeared to be a master design manual to the Deland building officials, FEMC staff, and later to members of the PCP. Mr. Joseph Berryman is a licensed professional engineer experienced in the design and analysis of commercial and industrial structures. Mr. Berryman has never supervised construction or conducted a final inspection of an aluminum patio shelter or screen enclosure. Mr. Berryman is an expert in structural engineering. He was well known to the members of the PCP as a consulting expert for the Board. He had rendered expert opinions to the Board in several recent license discipline proceedings involving aluminum screen enclosures. At Ms. Anderson?s request, Mr. Berryman reviewed the e-mail correspondence from Mr. Crum to FEMC, the correspondence from Mr. Crum to Coody, the January 26, 2011, authorization letter from Mr. Cleaton for Coody, the two-page permit application, and a one-page drawing showing the framing plan and elevations for the Birchmont screen enclosure. In a letter to Mr. Rimes dated April 15, 2011, Mr. Berryman concluded that the statements in the Coody authorization letter were consistent with the definition of master design manual system as addressed by section 489.113(9). He further concluded that if Mr. Cleaton wanted to continue to utilize a master design manual, he would need to obtain peer review and comply with the other requirements set forth in that statute. On or about May 31, 2011, Mr. Crum sent an e-mail to Ms. Anderson with an attached copy of an unsigned Uniform Complaint Form, which is utilized by the Board to document complaints. The e-mail stated that Mr. Crum thought he had sent the complaint form earlier, but then realized he had not done so. The e-mail asked if FEMC needed him to fax another copy of the Uniform Complaint Form with his signature on it. The complaint form outlined Mr. Crum?s earlier allegation that Mr. Cleaton was providing a master design manual for aluminum structures that did not meet the third-party peer review or training requirements of section 489.133(9), Florida Statutes. There was no evidence that FEMC ever contacted Mr. Crum in response to his inquiry about the need for another copy of the complaint form with his signature. Mr. Crum never provided a signed copy of his complaint to FEMC. There was no evidence of any prejudice to Mr. Cleaton resulting from the fact that the complaint was not signed. In light of Mr. Cleaton?s April 11, 2011, representation to FEMC that the documents were not being utilized as a master design manual, FEMC decided to “take him at his word” and consider the documents to have been prepared as signed and sealed engineering for a site-specific project. FEMC staff decided to investigate the engineering in the documents that had been provided to them, and asked Mr. Berryman to review them as part of the investigation. FEMC had no reasonable cause to believe that there was anything wrong with the engineering contained in the documents for the screen enclosure. Ms. Anderson did testify that, in her experience, a high percentage of construction plans for aluminum screen enclosures contained engineering flaws, but she was not familiar with either Mr. Cleaton or the Birchmont structure and did not have any information suggesting that these particular engineering documents were deficient. FEMC?s decision to investigate the engineering contained in the documents that had been given to them in connection with the complaint did not initiate a new investigation, but instead continued the investigation that had already begun, albeit taking that investigation in a new direction. Mr. Cleaton was not informed by FEMC of this change in the direction of the investigation. Mr. Berryman completed calculations for his review of the construction plans for the screen enclosure prior to June 20, 2011, but he did not provide a copy of those calculations with his report. In a letter addressed to Mr. Rimes dated June 20, 2011, Mr. Berryman identified various omissions of required information as well as flaws in the engineering designs and design assumptions contained in the construction documents, including the identification of several overstressed elements and violations of the Florida Building Code (FBC or the Code). Mr. Berryman concluded that, “As indicated above, Mr. Cleaton has failed to utilize due care in performing in an engineering capacity and has failed to have due regard for acceptable standards of engineering principles.” The June 20, 2011, report from Mr. Berryman was a competently prepared and adequately sourced engineering opinion. Any procedural errors or irregularities in the investigative stage did not impair Petitioner?s defense. Based substantially upon Mr. Berryman?s report, a proposed Administrative Complaint was prepared. Four counts alleged that the engineering documents for the Birchmont structure failed to include required information (counts 4A through 4D); three counts alleged that specific elements used in the Birchmont structure were overstressed at 2007 FBC prescribed design loading (counts 4E through 4G), alleging, for example, that the “2x5 SMB roof beam elements of the subject structure are significantly overstressed at 2007 FBC (Table 2002.4) prescribed design loading”; four counts alleged elements in column and beam schedules that were not utilized for the Birchmont structure were overstressed at 2007 FBC prescribed design loading (counts 4H, 4J, 4L, and 4M); two counts alleged that elements contained in column and beam schedules, only some of which were used in the Birchmont Structure, were overstressed at 2007 FBC prescribed design loading (counts 4I and 4K); and the two remaining counts (4N and 4O) contained generic allegations that the elements of the screen enclosure and the elements in the span tables were not engineered in accordance with the strength requirements of the 2007 FBC. On September 20, 2011, the PCP of the Board of Professional Engineers found probable cause to charge Mr. Cleaton with violating section 471.033(l)(g), Florida Statutes, by being negligent in the practice of engineering. The transcript of the probable cause proceeding shows that Mr. Rimes summarized the case for the members of the PCP and that they did not discuss the allegations prior to their vote finding probable cause. Mr. Rimes incorrectly stated that FEMC had received a complaint with regard to the quality of the work. Each member indicated that he had thoroughly read and reviewed the materials provided prior to the meeting. The transcript also shows some discussion of the facts of the case, but only after the vote. Mr. Rebane?s questions showed that he was aware that at different times during the investigation, issues regarding both master design omissions and deficient engineering in the signed and sealed engineering documents had been considered. Mr. Hahn?s comments showed he was aware that Petitioner had asserted that the drawings were signed and sealed documents for the Birchmont structure and even indicated that he believed Petitioner “made things worse for himself” by doing so. The members of the PCP were generally familiar with the extensive materials that were provided to them, the details of the case, and Mr. Berryman?s opinion. The PCP had previously been provided copies of the Issue Analysis and Staff Recommendation; the Investigative Report; the letter from Mr. Crum to Coody regarding the plans for the Birchmont screen enclosure; several e-mails between Ms. Anderson and others, including Mr. Crum, Mr. Rimes, and Mr. Cleaton; the authorization letter for Coody from Mr. Cleaton; the Application for Permit submitted for the Birchmont structure to the City of Deland; the engineering drawings for the structure; the letter dated March 31, 2011, from Mr. Cleaton to Ms. Anderson in response to the original complaint; the April 15, 2011, opinion letter from Mr. Berryman to Mr. Rimes, but without the second page; the unsigned Uniform Complaint Form submitted by Mr. Crum on or about May 31, 2011; the second opinion letter from Mr. Berryman to Mr. Rimes, dated June 20, 2011; and a draft of the proposed Administrative Complaint. The missing second page from the April 15, 2011, opinion letter continued a list of the documents that had been reviewed by Mr. Berryman, set forth the allegations made by Mr. Crum, and contained the following statement: “The problem at the building department was apparently resolved by the submittal of signed and sealed site-specific engineering for the project by Mr. Cleaton.” The missing page did not contain Mr. Berryman?s opinion and contained no information contradictory to the conclusions in the opinion letter. While Petitioner argues that the above-quoted sentence dispelled “any scintilla of justification” for the investigation, this conclusion is rejected. In fact, notwithstanding Mr. Cleaton?s statement to the building department that the documentation was not to be considered a master design manual, the opinion letter goes on to conclude that this statement of Mr. Cleaton?s was inconsistent with other statements he made and that the documents fail to include elements required by section 489.113(9). The absence of the missing page was not a material flaw in the probable cause proceedings. First, the two pages that were provided to the PCP accurately represented the entire opinion letter. Second, the April 15, 2011, opinion letter addressed Mr. Crum?s original allegations as to the failure to comply with the requirements of section 489.113(9), relating to master design manuals, which was not the ultimate basis for the Administrative Complaint. It was Mr. Berryman?s subsequent opinion letter dated June 20, 2011, also provided to the PCP, which provided the basis for the Administrative Complaint. Mr. Berryman?s calculations were not included among the materials given to the PCP. An Administrative Complaint reflecting the September 20, 2011, findings of the PCP was issued on September 30, 2011, and was subsequently served upon Mr. Cleaton. The Administrative Complaint was styled “Florida Board of Professional Engineers v. Frank Cleaton, P.E.” It was accompanied by an Election of Rights form, headed with “State of Florida, Florida Engineers Management Corporation,” advising Mr. Cleaton of his right to request an informal or formal hearing within 21 days of receipt of the Administrative Complaint. The complaint was filed by FEMC on behalf of the Board. The Department of Business and Professional Regulation (the Department) played no active role in the investigation or prosecution of the case. FEMC did not notify the Deland Building Department or the owner of the screen enclosure of its finding of "17 serious material deficiencies." Pursuant to Mr. Cleaton?s demand, an evidentiary hearing under sections 120.569 and 120.57(1), Florida Statutes, was scheduled to be heard on September 25, 2012. On or about March 2, 2012, Mr. Berryman submitted to FEMC the calculations he had performed prior to his June 20, 2011, opinion letter to FEMC, so that they could provided to Petitioner. Mr. Cleaton?s expert, Mr. Thomas Campbell, submitted a report dated September 12, 2012, which was provided to FEMC the following day. Mr. Campbell concluded that the Birchmont screen enclosure plans met the “evolving” FBC (2007-2010)2/ and the Aluminum Design Manual (2005). He concluded the screen enclosure was adequately built and safe. His report asserted that any errors in the engineering tables that were not actually used in constructing the Birchmont structure should be considered irrelevant. The report stated that all maximum member moments were “well below allowable” and all member interaction ratios (axial and bending) were well below 1.0, with one exception. The 2 x 2 section exceeded that ratio by less than 9 percent and was in tension. The report concluded that this was well within the acceptable range for the conservative evaluation that was conducted. Mr. Berryman reviewed Mr. Campbell?s report and concluded that his analysis failed to determine allowable stresses for the aluminum framing members in accordance with the 2005 Aluminum Design Manual, as was required by the FBC. Mr. Berryman found that Mr. Campbell?s opinions did not comply with accepted engineering practice and that his analyses were unreliable and replete with errors. However, Mr. Berryman also examined some load test results for self-mating beams that had been prepared for “Aluminum Enclosures Suppliers Council” and “Town and Country Industries, Inc.,” aluminum manufacturing companies in the State of Florida, which had been supplied along with Mr. Campbell?s opinion. These test results were proprietary information that was not available to Mr. Berryman prior to Mr. Campbell?s report. While these data were incomplete and had not been verified by industry professionals and regulatory authorities, Mr. Berryman concluded that they suggested at least the possibility of an alternate method of determining allowable stresses that might be helpful to Mr. Cleaton?s designs. Although the data in the test reports diverged from the design methodology described as acceptable in the FBC, the Code allows some departures from these standards when an alternative analysis has been reasonably justified. Mr. Berryman therefore recommended that many of the charges in the Administrative Complaint should not be pursued until the proprietary data could be validated or invalidated. On September 21, 2012, Respondent filed an unopposed Motion to Cancel Hearing, Relinquish Jurisdiction and Close File. An Order Closing File was issued by the administrative law judge on September 21, 2012. On September 27, 2012, Respondent filed a Motion to Dismiss Administrative Complaint and Close File with the Board. Petitioner did not respond to the Motion. On November 7, 2012, the Board entered its Final Order dismissing the Administrative Complaint filed against Petitioner. Mr. Cleaton is a prevailing small business party within the meaning of section 57.111, Florida Statutes. On November 9, 2012, Petitioner filed a Motion for Attorney Fees and Costs with DOAH seeking attorneys' fees and costs under the provisions of section 57.111. Mr. Cleaton incurred attorneys? fees and costs in defending his license against the Administrative Complaint initiated by the Board. Attorneys? fees in the amounts of $11,456.25 for Sheppard, White, and Kachergus, P.A., and $30,247.50 for McCabe Law Group, P.A., are reasonable. Mr. Cleaton retained the services of Mr. Campbell to be his expert witness. Mr. Campbell in turn enlisted the services of NuVision, an engineering company he owns, to assist in preparations for his testimony. Mr. Campbell is an expert in structural engineering. Mr. Campbell and NuVision are based in Pennsylvania. The claimed expert witness fees of $48,037 are excessive. This amount reflected some 176 hours spent by three engineers, 16 hours for their administrative support, and $22 for travel expended at NuVision, as well as an additional 65 hours of time spent by Mr. Campbell, 30 hours of administrative support for him, and $715 in travel spent by Mr. Campbell?s firm, TEC Enterprises. Testimony offered by Mr. Campbell indicated that the claimed hours represented only about half of those actually expended, and that none of the claimed costs were for time spent in learning specific requirements unique to Florida, such as the FBC. A reasonable cost for Petitioner?s expert witness was $15,000. Mr. Berryman credibly testified that 100 hours of time would have been ample for the engineering work; that $250 per hour for a supervising engineer, $200 per hour for a senior engineer, and no more than $100 per hour for an entry-level engineer were reasonable rates; and that senior engineers were not required to do the necessary calculations. Allocating 25 hours to Mr. Campbell as supervising engineer and 75 hours for entry-level engineers to make the calculations, and applying the hourly rates mentioned in this paragraph would be reasonable. Adding another 5 hours of Mr. Campbell?s time at the supervising engineer rate for the final preparation of his testimony and actual hours at the deposition is reasonable. No special circumstances exist that would make an award of fees and costs unjust. The documentation provided to the PCP was not misleading, was not missing critical information, and contained required allegations of fact. The PCP?s finding was supported by expert opinion and had a solid basis in law and fact. The PCP?s actions in directing the filing of an Administrative Complaint were substantially justified.
Findings Of Fact Petitioner herein, Kristina V. Tignor, took the Professional Engineers Examination for the State of Florida in Orlando on April 9 and 10, 1987. On July 22, 1987 she was advised by the Department of Professional Regulation's Office of Examination Services that she had failed the examination and was given a cummulative score of principles and practice of 69.1 percent. In her initial request for review and reconsideration, Petitioner objected to the points assigned to her solutions for three problems on the test, Numbers 425, 421, and 124. She contended that as a working engineer, certain criteria and assumptions must be made in approaching any engineering problem and, because the portion of the examination in issue is graded subjectively, her answered should be reconsidered and evaluated in that light. At the hearing, Petitioner contested only the grading of questions number 124 and 421, thereby accepting the grade given for question 425. With regard to Question 124, Ms. Tignor was awarded a score of 5 on her solution to this problem. The National Council of Engineering Examiners, in its Standard Scoring Plan Outline awards a "qualified" evaluation to scores from 10 down to 6 on this question. Scores from 5 to 0 are rated, "unqualified." A score of 5 indicates the applicant has failed to demonstrate adequate knowledge in one aspect of one category. Specifically, a rating of 5 in this question indicates that the examinee displayed an inadequate knowledge of weight/volume and concrete mix design. Her computations were displayed and an incomplete or erroneous solution was arrived at which gave a generally unrealistic result. Dr. Bruce A. Suprenant a civil engineer registered in four states and who teaches engineering at the University of South Florida, reviewed the question, the Petitioner's solution, the solution proposed by the examiners, and the grading scheme for this problem and found a number of illogical items in Petitioner's solution which, to him, were difficult to understand. He found several items which had no basis and which were possibly assumed. As to Part a of Petitioner's answer, a mixture of answers, (correction for moisture), which should have been in Part b, was located in Part a. As to density, the value used by Petitioner does not appear to be reasonable based on information provided in the problem. In Dr. Suprenant's opinion, there are at least three approaches to this problem. One is the water/cement ration method. Another is the weight method. The third is the absolute volume method. The water/cement ratio method would be difficult to apply here and neither Petitioner nor the examiners used it. As to the weight method, much the same problem exists. There is insufficient information provided to satisfactorily apply this method and while the examiners did not use it, Petitioner did. Petitioner's answer has a correction for moisture in the absolute volume method on the first page of the solution form at the top. The calculations by Petitioner are assumed information not known, (volume). In addition the correction for moisture in the second part of page one is included on the top of page two. It is not a part of the solution for subpart a and should not be there. Petitioner used 150 pounds per cubic foot for concrete density in her solution and this choice is not explained. Most publications utilized by engineers suggest using tables which were not provided to the examinees and it is, therefore, illogical to assume concrete density with no history for that assumption. Petitioner's answer of 5.41 cubic yards is only slightly off the suggested answer of 5.44 cubic yards but the fact that the answers are close does not justify her assumption. It might well not come so close in other cases. As to Part b of the question calling for the water/cement ratio, the corrections for moisture of fine and coarse aggregate on page one are acceptable. On the second page, a problem arises in when the correction for moisture should decrease. Petitioner got the right factor but applied it in the wrong manner. As a result, her answer to Part b of the examination question is wrong. Her answer was 4.40 as opposed to the correct answer of 4.34. This small degree of error can be attributed to the smallness of the amount in question. Were the amounts greater, the error would be greater. As to part c of the question, which deals with the cement factor in a yard of concrete, Petitioner's approach of dividing sacks of cubic yards is correct, but the cubic yard content was determined from Part a of the question, and Dr. Suprenant does not agree with how she got her solution. He therefore questions her carryover. The standard weight of a sack of concrete is 94 pounds. The individual grading Petitioner's response to Question 124 indicates she displayed inadequate knowledge and reached a solution which gives "unrealistic results." Dr. Suprenant agrees, contending that Petitioner's performance in regard to this question indicates inadequate knowledge of weight/volume relationship. She made inadequate assumptions in formulating her answer to the question. The fact that in this problem she arrived at a solution close to the correct one does not indicate that in other problems, she would achieve the same closeness using the same procedure. In his opinion, Petitioner showed some confusion regarding the basis for solving this problem and Dr. Suprenant believes that a grade of 5 as awarded by the examiner is correct. Petitioner questioned the fact that the various technical weights and volumes, such as 94 pounds in a sack of concrete, 8.33 pounds for a gallon of water, and 27 cubic feet in a cubic yard do not appear in the problem statement. This, in the opinion of Dr. Suprenant, compounds the gravity of Petitioner's deficiency. They are routine "givens" generally accepted in the practice by engineers and it would be difficult to assume that anyone familiar with the practice of engineering would use different "givens" for these specifics. Petitioner's employer, Mr. Bishop, himself a registered civil engineer in Florida since 1958, also reviewed Petitioner's solution to Question 124. He admits that on the first page of the answer sheet, Petitioner began solving the problem in an inappropriate way. Her calculations for moisture content were correct, however. On the second paged the correction factor was put in with the wrong sign and the aggregate was given the wrong factor. As a result, the answer was off. In his practice, however, the error committed by Petitioner in these regards is both minimal and acceptable. Her choice of 150 pounds per square foot is reasonable and produced a close result, and while it is true that if the project were of a greater scale, the error might be significant for a test question, as here, the error, in his opinion, is insignificant. He feels much the same way regarding the error in Part c of the examination question. While the factors used by petitioner were wrong, the process used was correct and the answer was not unreasonably incorrect for a test solution. In an examination situation, the calculations are not being done on a continuous basis, and he feels the grade of 5 awarded is unduly harsh since the error was numerical rather than operational. In his opinion, a more reasonable grade would have been a 6 or 7. Petitioner began her solution to this problem by using one similar to that used by the examiners in their publications. Shortly, however, she realized she would not get the answer she needed by doing so and abandoned her solution. She forgot to cross it out, however, and now recognizes she should have done so. She thereafter began to accomplish a series of new calculations on the first page of the answer sheet but did not necessarily utilize that data for her solution to Part a. She admits she made an error in calculation for moisture on the second page. In that calculation, she used the study manual and admits now that she should have cited the figure she used. As to Parts b and c, her use of some figures from Part a may have thrown her answer off somewhat. However, the 5 awarded her, indicating her solution was unrealistic, is, in her opinion unfair as she considers her answer to be quite realistic. The problem did not state what solution method to use and she feels her use of givens from recognized manuals such as the 150 pounds, should not be held against her. 94 pounds for a sack of cement used by the grader was also not given and her use of other accepted numbers should not, she contends, be held against her. Petitioner believes a grade of 7 would more accurately describe the quality of her answer. A 7 means that the examinee obtained an appropriate solution but chose a less than optimum approach. The solution is, therefore, awkward but nonetheless resonable. Ms. Tignor believes that while her approach may have been awkward, she achieved reasonable solution demonstrated by the fact that it was only slightly off the correct figure. Therefore, she believes a grade of 6 would be appropriate. This examination was an open book examination and Petitioner had her manuals with her. She could have easily determined the appropriate weights an "givens" from these manuals without choosing those she used. Ms. Tignor's conclusions that her results are realistic are contradicted by the Board's expert. Realistic results are, in engineering practice, not only the figure reached but also the method used in arriving at that figure. Here, though Petitioner's results are close, the approach utilized in arriving at her solution is unrealistic. Her approach showed an inadequate knowledge of weight/volume and calculations. Consequently it is found the grade is valid and was not arbitrarily assigned. According to the Standard Scoring Plan Outline, each score from 10 through 6 has an indispensable criteria that all categories must be satisfied. Since Ms. Tignor's examination response did not satisfy all categories, the best she can be given is a 5 and that award appears to be justified by the evidence presented. Question 421 was a four part drainage problem. Petitioner used as a part of her solution calculations based on a 100 year storm and this was determined by the examiners to be inappropriate. Ms. Tignor was awarded a grade of 8 and contends she was not given appropriate credit. She relates that even Mr. Smith, the Executive Director of the Board of Professional Engineers, advised her she may not have been given full credit for her answer. She was given full credit for Part a but lost two points for part c which included a calculation error to which Petitioner admits. She contends however, it was so minor, only one point should have been deducted. Were Petitioner to receive an additional one point on this question, she would pass the examination which she failed by only one point. However, this issue must be resolved on the basis of lawfully admitted evidence and Mr. Smith's comment, being unsupported hearsay evidence, cannot itself sustain the rasing of the grade. The Standard Scoring Plan Outline for this question reflects that to receive an 8, the examinee must demonstrate that all categories are satisfied, that errors are attributable to misread tables or calculating devices, and that errors would be corrected by routine checking. The results must be reasonable if not correct. For a 9, the examinee must demonstrate that all categories are satisfied; that a correct solution is arrived at but the examinee has been excessively conservative in the choice of working values; and that examinee's presentation is lacking in completeness or equations diagrams or orderly steps in solution, etc. Subqualifications for a 9 indicates that the answer is correct but that the organization of the solution is not logical. One error in calculation in any of the Parts from a to d, which does not affect the other parts of the solution, is acceptable. Mr. Kenneth Weldon, the Assistant State Drainage Engineer for the Department of Transportation, an expert in the area of drainage to which this problem relates, reviewed the question and the Petitioner's answer thereto and would award a grade of 8 to her answer. He found various numerical mathematical errors which led to the wrong solution. In addition, Petitioner made various assumptions that, though supposedly supported, were, he felt, in error through her misinterpretation. In general, none of the actual solutions she arrived at were correct. Specifically, that portion of the problem to determine the cross sectional area of the waterway for establishing normal depth flow was done incorrectly. Because the Petitioner used incorrect equations throughout the problem, the depth flow computed is high. Petitioner did no analysis to determine whether or not any of the several situations relating to flow control were pertinent. Mr. Weldon initially felt Petitioner's answer to the question merited a grade of 6. This means that the examinee knew all the proper steps but failed to interpret some of the criteria properly. He could not award her a grade of 9 which would indicate all categories were satisfied and the solution was correct, if conservative. Petitioner's solutions were incorrect. He subsequently changed his award to an 8, however, on the basis that the Petitioner's errors were attributable to a misread table or calculating device and would be corrected by routine checking. The result was reasonable, though not correct. Mr. Weldon did not like this question even though he believed it appropriate for a one-hour exam. As written, it involves establishing and making judgements beyond what someone minimally competent would be expected to do. It requires materials that are beyond what are normally available to someone taking the exam. However, Petitioner failed to make proper provision to protect herself in a case where the question is inappropriate or incomplete. If she felt something was wrong with the question, she should have clearly stated the assumption she was making to solve the problem. This was her responsibility and she failed to do so. In Mr. Weldon's opinion, Petitioner's answer might merit a grade slightly higher but not significantly higher. His reasoning is that Petitioner misinterpreted the criteria she stated for writing the problem. Her comment that the Department of Transportation uses 100 year storm criteria was incorrect even though that statement is made in outdated Department of Transportation publications. The basis for her answer is not well established or correct, or based on engineering calculations or judgement, and at best he could award no more than an 8.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered affirming the score awarded to Petitioner on questions 124 and 421, respectively, of the Civil Engineering Examination administered to her in April, 1987. RECOMMENDED this 10th day of June, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5110 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner None For the Respondent Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated except for the characterization of several assumptions as guesses. No evidence exists to support such a characterization even though they are incorrect. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Kristina V. Tignor, pro se 2160 North Oval Drive Sarasota, Florida 34239 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director DPR, Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
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 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.
