00-002833PL Florida Engineers Management Corporation vs. William C. Bracken, P.E. Status: Closed Recommended Order on Friday, March 30, 2001.

Summary: Not negligence where: inclusion of wrong roof truss where engineer could not be misled; omission of: supplemental framing in drawings to reflect studs where common field practice gives necessary information; roof, floor diaphragms due to common practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 00- 2833PL

)

WILLIAM C. BRACKEN, )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Tampa, Florida, on November 28 and 29, 2000.

APPEARANCES

For Petitioner : William H. Hollimon

Ausley & McMullen

Post Office B ox 391

Tallahassee, Florida 32302

For Respondent : Brent Wadsworth

Post Office Box 270118

Tampa, Florida 33688

David P. Rankin

3837 Northdale Boulevard

Suite 332

Tampa, Florida 33624

STATEMENT OF THE ISSUE

The issue is whe ther Respondent engaged in the negligent

practice of engineering, in violation of Section

471.033(1)(g), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint dated February 3, 2000,

Petitioner alleged that Respondent was the structural engineer

of record for the Sorrentino Residence project in Tampa. The

Administrative Complaint alleges that Respondent signed and

sealed structural engineering plans for the Sorrentino

Residence project in June 1997, but numerous deficiencies in

the plans indicate a failure by Respondent to exercise due

care in engineering or a failure by Respondent to exercise due

regard for acceptable standards of engineering principles.

Count One of the Administrative Complaint alleges that

Respondent’s structural drawings for the Sorrentino Residence

project are deficient because openings interrupt the vertical

stud framing of the front wall of the living room and front

wall of the kitchen, and the drawings do not specify the

necessary supplemental framing. Count One alleges that

Respondent thus committed negligence in the practice of

engineering, in violation of Section 471.033(1)(g), Florida

Statutes.

Petitioner dismissed Count Two of the Administrative

Complaint at the final hearing.

Count Three of the Administrative Complaint alleges that

Respondent’s structural drawings for the Sorrentino Residence

project are deficient because they fail to specify details of

the floor and roof diaphragms (sheathing thickness and

nailing). Count Three alleges that Respondent thus committed

negligence in the practice of engineering, in violation of

Section 471.033(1)(g), Florida Statutes.

Count Four of the Administrative Complaint alleges that

Respondent's structural drawings for the Sorrentino Residence

project are deficient because the roof framing plan provides

conflicting information by showing gable trusses when the

plans indicate the absence of gable trusses. Count Four

alleges that Respondent thus committed negligence in the

practice of engineering, in violation of Section

471.033(1)(g), Florida Statutes.

Respondent timely requested a formal hearing.

At the hearing, Petitioner called two witnesses and

offered into evidence ten exhibits : Petitioner Exhibits 1-10

(Petitioner Exhibits 9 and 10 are Respondent Exhibits 1 and 2,

respectively). Respondent called five witnesses and offered

into evidence 14 exhibits : Respondent Exhibits 15, 17, 19-21,

23-30, and 32. All exhibits were admitted.

The court reporter filed the transcript on December 21,

2000.

FINDINGS OF FACT

1. Respondent has been a licensed professional engineer

in Florida since 1994, holding license number 47676. He is

not licensed in any other states.

2. Respondent is a member of the American Society of

Civil Engineers, National Society of Professional Engineers,

Structural Engineers Council, and National Academy of Forensic

Engineers. He also serves as a subject-matter expert for the

Florida Construction Industry Licensing Board, and he helps

prepare and evaluate contractor licensing examinations.

Respondent is also a licensed general contractor.

3. This case involves engineering drawings that

Respondent prepared for a residential project known as the

Sorrentino Residence. The Sorrentino Residence is located in

Hillsborough County. The drawings, which are signed and

sealed by Respondent, represent that the design portrayed by

the drawings is “in accordance” with the SBCCI Standard

Building Code, 1994 Edition[, and t]he wind design was

conducted using a 110 MPH wind speed.”

4. Prior to the Sorrentino Residence, Respondent had

been the engineer of residence for over 20 projects. About 10

of these projects had been wood-frame homes, such as the home

designed and constructed as the Sorrentino Residence.

5. The owner of the Sorrentino Residence purchased plans

from Amerilink. A mechanical/electrical engineering firm,

Parker- Stevens, obtained the consent of Amerilink to alter

these plans for the Sorrentino Residence. One of the changes

increased the thickness of the second floor, which raised the

overall building height by 12 inches.

6. Respondent became involved with the Sorrentino

Residence when one of the principals of Parker-Stevens

contacted him and asked if he would work on the project. The

structural engineer who had started to work on the project had

moved out of Florida prior to obtaining any permits.

Respondent agreed to accept the assignment.

7. Respondent worked on the drawings, as well as on

other assignments, for six weeks. He required about 60 hours

to perform all of the necessary calculations. Because of poor

soil conditions at the lakefront lot at which the Sorrentino

Residence was to be built, Respondent had to substitute

pilings for a masonry stemwall. To preclude differential

settlement of pilings, Respondent performed the calculations

necessary to place the pilings so that each was within 10

percent of the others’ axial load. Respondent also performed

calculations for numerous other purposes, including designing

the beams, floor diaphragm, second-floor bearing wall,

exterior walls, and structural ability to withstand wind

loads.

8. At the time that he began to work on the Sorrentino

Residence drawings, Respondent was still a partner with

Architectural Services and Engineering. In July 1997, two

weeks after Respondent had sealed the drawings , Respondent

became dissatisfied with the business practices of his

partner, who was not an engineer, contractor, or architect,

and left Architectural Services and Engineering. Construction

on the Sorrentino Residence started about six weeks later.

9. When Respondent left Architectural Services and

Engineering, he was the sole qualifier for the company, which

did not obtain another qualifier for eight months. Following

Respondent’s departure from Architectural Services and

Engineering, the owner of the Sorrentino Residence contacted

Respondent to discuss the drawings. Because the contract was

between the owner and Architectural Services and Engineering,

Respondent’s former partner objected to any communication

between Respondent and the owner and, among other things, made

the complaint that led to the commencement of this

disciplinary proceeding. At this point, Respondent chose not

to have further contact with the owner or construction of the

residence.

10. Count One alleges that Respondent’s drawings are

deficient because they fail to specify the necessary

supplemental framing in the exterior walls of the living room

and kitchen.

11. Petitioner has failed to prove by clear and

convincing evidence that Respondent’s omission of the

supplemental framing constitutes negligence in the practice of

engineering.

12. First, not surprisingly, common field practice has

addressed the recurring phenomenon of openings in exterior

walls. After cutting studs for an opening, all contractors

add headers, jack studs, and full-length studs on each side of

the opening. The omission from drawings of an element readily

supplied by common field practice is not negligent.

13. The Hillsborough Building Department expects

drawings to depict supplemental framing, at least if such

detail is necessary to construct the building that is the

subject of the drawings. This expectation does not establish

negligence in this case for two reasons. First, as noted in

the preceding paragraph, common field practice obviates the

necessity of the depiction of the supplemental framing around

openings in exterior walls; thus, such detail is unnecessary

to construct the building. Second, the Hillsborough Building

Department frequently rejects drawings and plans; thus, a

departure from its requirements is not necessarily negligence,

at least absent a showing that negligence in engineering is

common in Hillsborough County.

14. Additionally, neither the Standard Building Code nor

applicable rules specify the minimum contents of drawings.

Interestingly, several years ago, the Hillsborough County

Building Department eliminated its minimum requirements for

drawings. These facts suggest that categoric minimum

requirements for drawings must yield to a case-by-case

approach that can better address the myriad of circumstances

that accompany each design project, including the complexity

of the subject structure, the significance of the item omitted

from the drawings, and the likelihood that custom or practice

will supply the information missing from the drawings.

15. The preceding paragraphs sufficiently address the

issue raised by Count One. However, both parties have

addressed other issues. Given the resolution of these issues,

it is unnecessary to consider whether they have been

adequately pleaded.

16. Sheet A-6 of the drawings contains details for a

“typical wall section” and “typical shear wall.” The “typical

wall section” clearly depicts exterior walls and specifies,

for such walls, 2 -inch by 4-inch studs spaced 16 inches on

center. Sheet A-4 depicts exterior walls as 3 1/2 inches

thick, which is consistent with exterior framing of 2-inch by

4-inch lumber, rather than 2-inch by 6-inch or 2-inch by 8-

inch lumber.

17. However, General Note 4.4.1 on Sheet A-1 specifies

that the exterior framing shall be 2-inch by 6-inch and 2-inch

by 8-inch. The only 2-inch by 4-inch lumber is reserved for

interior framing.

18. The drawings are inconsistent as to the

specification of exterior framing. The inconsistency is

obvious and caused the owner to contact Respondent after

delivery of the drawings and confirm that he intended the use

of 2-inch by 6-inch or 2 -inch by 8-inch exterior framing.

19. However, Petitioner has failed to establish that

this internal inconsistency in the drawings constitutes

negligence. It is not negligence merely because drawings are

flawed, even if the flaw requires a contractor or owner to

request clarification from an engineer.

20. The flaw in specifying the exterior framing studs is

not negligent for two reasons. First, the obvious

inconsistency in the drawings, which caused even the owner to

contact Respondent, left little chance that a contractor would

fail to notice the conflicting specifications. Noticing the

conflict, the contractor would either build to the more

conservative specifications, which would be the stronger

exterior framing studs, or contact the engineer for

clarification.

21. Second, the record amply demonstrates that informed

engineers differ as to the materiality of the specification

that the exterior framing studs be greater than 2-inch by 4-

inch. Absent clear and convincing evidence that the

structural integrity of the building would have been affected,

in terms of its ability to support design wind loads, the flaw

in specifying the exterior framing studs does not rise to

negligence.

22. Count Three alleges that Respondent’s drawings are

deficient because they fail to specify the sheathing thickness

and nailing of the floor and roof diaphragms.

23. Petitioner has failed to prove by clear and

convincing evidence that Respondent’s omission of the

sheathing thickness and nailing of the floor and roof

diaphragms constitutes negligence in the practice of

engineering.

24. Again, neither the Standard Building Code nor the

rules require the depiction of a diaphragm or a specification

of its thickness or nailing patterns. The practice of the

Hillsborough County Building Department is to require the

depiction of the diaphragm if the drawings deviate from the

sheathing orientation or nailing pattern specified in the

Standard Building Code.

25. Depicting the first floor framing plan, Sheet A-3

specifies 1/2-inch plywood subflooring. As noted by

Respondent’s expert, 1/2-inch plywood subflooring would sag,

although not collapse ; 3/4-inch plywood subflooring is needed,

given the 24-inch spacing of the floor trusses. Again, the

owner, evidently concerned about this detail, contacted

Respondent after delivery of the drawings, and Respondent told

the owner to use 3/4-inch plywood.

26. However, nothing in the Administrative Complaint

alleges negligence in the misspecification of the plywood

subflooring. Count Three alleges only that the drawings

negligently omit specifications concerning the floor and roof

diaphragm, which would include the plywood subflooring.

Specifying the wrong item is not failing to specify an item.

Proof concerning the erroneous specification of 1/2-inch

plywood subflooring is therefore outside the scope of the

pleadings and irrelevant.

27. Count Four alleges that Respondent’s drawings are

deficient because they include gable trusses even though the

house was not to be constructed with gable trusses.

28. Petitioner has failed to prove by clear and

convincing evidence that the depiction of gable trusses

constitutes negligence in the practice of engineering.

29. Respondent explained that he simply provided the

truss engineer with an alternative roof design, in case the

need for an alternative arose. Respondent’s explanation was

implausible. It was also imprudent, as evidenced from pages

12 -14 of Petitioner’s proposed recommended order.

30. The inclusion of the gable trusses was a simple , but

harmless, mistake on Respondent’s part. Although sloppy, the

inclusion of gable trusses in the drawings could not possibly

have misled the truss engineer, to whom Respondent had

properly delegated the responsibility for designing the roof,

into designing the wrong roof for the Sorrentino Residence,

nor could it have misled the contractor into building the

wrong roof for the Sorrentino Residence.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administrative Code.)

32. Section 471.038(3) authorizes Petitioner to provide

administrative, investigative, and prosecutorial services to

the Board of Professional Engineers.

33. Section 471.033(1)(g) authorizes the Board of

Professional Engineers to impose discipline for negligence in

the practice of engineering.

34. Rule 61G15-19.001(4) defines “negligence” as “the

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.”

35. Petitioner must prove the material allegations by

clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932

(Fla. 1996) and Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

36. For the reasons set forth in the findings of fact,

Petitioner has failed to prove the material allegations by

clear and convincing evidence.

RECOMMENDATION

It is

RECOMMENDED that the Board of Professional Engineers

enter a final order dismissing the Administrative Complaint

against Respondent.

DONE AND ENTERED this 30th day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of March, 2001.

COPIES FURNISHED:

Natalie A. Lowe, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

1208 Hays Street

Tallahassee, Florida 32301

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre, 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Doug Sunshine, Esquire

V.P. for Legal Affairs

Florida Engineers Management Corporation

1208 Hays Street

Tallahassee, Florida 32301

William H. Hollimon

Ausley & McMullen

Post Office Box 391

Tallahassee, Florida 32302

Brent Wadsworth

Post Office Box 270118

Tampa, Florida 33688

David P. Rankin

3837 Northdale Boulevard

Suite 332

Tampa, Florida 33624

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any

exceptions to this recommended order must be filed with the

agency that will issue the final order in this case.