09-004296PL Florida Board Of Professional Engineers vs. Kamal Yazji, P.E. Status: Closed Recommended Order on Wednesday, January 20, 2010.

Summary: Respondent committed negligence in the practice of engineering in his preparation of plans for a church remodel project.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF )

PROFESSIONAL ENGINEERS, )

)

Petitioner, )

)

vs. ) Case No. 09-4296PL

)

KAMAL YAZJI, P.E., )

)

Respondent. )

)

RECOMMENDED ORDER

On November 3, 2009, a duly-noticed hearing by video

teleconference was held in Tallahassee, Florida and Jacksonville,

Florida, before Lisa Shearer Nelson, an administrative law judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John Jefferson Rimes, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

For Respondent: Kamal Yazji, P.E., pro se

5488 River Trail Road, South

Jacksonville, Florida 32277

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated Section 471.033(1)(g), Florida Statutes (2006), and Florida

Administrative Code Rule 61G15-33.003(2), and if so, what

penalties should be imposed?

PRELIMINARY STATEMENT

On November 21, 2008, the Florida Engineers Management

Corporation on behalf of Petitioner, Florida Board of

Professional Engineers, filed an Administrative Complaint against

Respondent, Kamal Yazji, alleging violations of Section

471.033(1)(g), Florida Statutes (2006), and Florida

Administrative Code Rule 61G15-33.003(2). Respondent originally

filed an election of rights form requesting an "informal" hearing

pursuant to Section 120.57(2), Florida Statutes. However, in

response to Requests for Admissions served by Petitioner,

Respondent denied several material allegations in the

Administrative Complaint. Accordingly, on August 13, 2009,

Petitioner forwarded the case to the Division of Administrative

Hearings and requested that an administrative law judge be

assigned to conduct a Section 120.57(1) hearing.

On September 3, 2009, a Notice of Hearing by Video

Teleconference was issued setting the case for November 3, 2009.

The parties filed a Pre-hearing Stipulation on October 30, 2009,

containing several stipulated facts that are, where relevant,

incorporated into the findings of fact below.

At hearing, Petitioner presented the expert testimony of

Homer Ooten, and Petitioner's Exhibits 1 and 2 were admitted into

evidence. Respondent testified on his own behalf, presented the

testimony of Robert Antione and Hilton Meadows, and submitted no

exhibits. Petitioner also indicated at the commencement of the

hearing that it was withdrawing paragraphs 5.d., e., and f. of

the Administrative Complaint. Accordingly, no findings will be

made with respect to these allegations.

At the request of the parties, proposed recommended orders

were to be filed 30 days from the filing of the Transcript, which

was filed with the Division on November 18, 2009. Both parties

timely submitted their Proposed Recommended Orders, which have

been carefully considered in the preparation of this Recommended

Order. All references are to the 2006 codification of the

Florida Statutes, unless otherwise indicated.

FINDINGS OF FACT

1. The Florida Board of Professional Engineers is the

administrative agency charged with the licensing and regulation

of engineering pursuant to Section 20.165(4)(a) and Chapters 455

and 471, Florida Statutes.

2. At all times material to this proceeding, Respondent

was, and remains, a licensed professional engineer, having been

issued license number PE 15252.

3. In or about March 2007, Respondent prepared, signed and

sealed plans for a project to remodel an existing building for

use as a church. Respondent was the only engineer to sign and

seal the church plans, and no limitation on his responsibilities

as engineer of record were disclosed on the plans.

4. Petitioner's Composite Exhibit 1 consists of three

sheets of plans related to the church project: 1) the structural

plan, labeled "S"; 2) the existing floor plan, demolishing floor

plan, and new floor plan, labeled "A-1"; and 3) the electrical

lighting recepts plan and plumbing plan, labeled "E,P."

5. The S sheet contained drawings for the foundation plan,

the platform framing plan, and the framing layout plan, along

with detail sections for each. The S sheet contained notes for

the contractor, and design criteria for structural material.

Petitioner makes no claims that there are deficiencies in the

structural plans.

6. Sheet A-1 contains drawings for the seating plan, the

new floor plan, and the existing floor plan/demolishing plan, as

well as a drawing of the typical interior wall section. Sheet A-

1 includes a box listing the scope of work to be performed, and a

separate listing of the applicable codes and code summary.

Included in the listed applicable codes are the Florida Building

Code, 2005 revision; the Florida Plumbing Code of 2004; the

National Electric Code 2005; the Florida Mechanical Code 2004;

and the Florida Fire Prevention Code 2004. The plans specify

that the building will be used as a church, with an occupancy

load of 127.

7. Sheet E,P contains drawings for the new plumbing plan,

toilets layout, existing water heater detail in the attic; the

sewer riser plan; and the electrical lighting and recepts plan.

There are work notes for both the plumbing and electrical work,

as well as an electrical legend.

8. The electrical plans do not include an electrical riser

diagram, and contain no information as to the amount of

electrical power coursing through the structure. There are also

no load computations or load summary or circuitry reflected on

the plans. It cannot be determined from the plans how much load

was used prior to the renovation and how much load will exist

afterwards. No information is provided to demonstrate how power

is delivered to an HVAC unit or water heater, even though the

units themselves are shown on the design.

9. The plumbing plans do not include any information

regarding the location of a cleanout for purposes of maintenance

of the sewage system. Respondent did not include this

information because there was already a cleanout in place for the

building that was not being disturbed.

10. The plans signed and sealed by Respondent do not

contain any mechanical plans. Respondent claimed that mechanical

design was beyond the scope of his services and that he discussed

this with his client. However, the plans themselves reference

the Florida Mechanical Code as being applicable to the plans and

nothing expressly excludes mechanical work from the work to be

performed.

11. There is no mention in the plans for the provision of

"outside air" to the users of the structure.

12. The plans were submitted to and reviewed by the City of

Jacksonville permitting office, and were approved for permitting.

All required inspections were conducted and passed.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

14. This proceeding is a disciplinary proceeding to take

action against Respondent's certification to teach in the State

of Florida. Petitioner bears the burden of proof to demonstrate

the allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

15. As stated by the Supreme Court of Florida,

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983).

16. Statutes that authorize the imposition of penal

sanctions must be strictly construed, and ambiguity must be

construed in favor of the Respondent. Elmariah v. Department of

Professional Regulation , 574 So. 2d 164, 165 (Fla. 1st DCA 1990).

Moreover, any violation of Chapter 471, Florida Statutes, or the

rules adopted pursuant to Chapter 471, must be based upon

specific allegations within the Administrative Complaint. See

Trevisani v. Department of Health , 908 So. 2d 1108 (Fla. 1st DCA

2005); Cottrill v. Department of Insurance , 685 So. 2d 1371 (Fla.

1st DCA 1996); and Hunter v. Department of Professional

Regulation , 458 So. 2d 842 (Fla. 2nd DCA 1984).

17. The operative paragraphs in the Administrative

Complaint are as follows:

3. Respondent prepared plans for a church

building remodel project located in

Jacksonville, FL.

4. On March 19, 2007, Respondent signed and

sealed plans for the project that included

plumbing, electrical and HVAC design.

5. Respondent's plans are deficient in one

or more of the following ways:

a. There are no calculations to indicate

that outside air requirements (per FBS-

Mechanical) have been addressed when the

building was converted from a 12 room

building (purpose/use unknown) to a church

with a sanctuary intended to seat 123

occupants.

b. There is no Electrical Load Summary and

no Electrical riser Diagram. The Existing

Electrical Panel is shown to be 200 Amps, 3

phase with 24 breakers. However, no

circuiting is shown. These omissions violate

61G15-33.003(2), F.A.C.

c. No plumbing clean-outs are shown in

violation of the Florida Building Code.

* * *

Based on the foregoing, Respondent is charged

with violating Section 471.033(1)(g), Florida

Statutes, and by [sic] and Rule 61G15-

33.003(2), Fla. Admin. Code, engaging in

negligence in the practice of engineering.

18. Only violations of Section 471.033(1)(g), Florida

Statutes, and Florida Administrative Code Rule 61G15-33.003(2)

are charged in the Administrative Complaint. While testimony was

presented at hearing regarding other possible rule violations,

only those matters actually charged will be discussed herein.

19. Section 471.033, Florida Statutes, provides in

pertinent part as follows:

(1) The following acts constitute grounds

for which the disciplinary actions in

subsection (3) may be taken:

* * *

(g) Engaging in fraud or deceit, negligence,

incompetence, or misconduct, in the practice

of engineering.

* * *

(2) The board shall specify, by rule, what

acts or omissions constitute a violation of

subsection (1).

(3) When the board finds any person guilty

of any of the grounds set forth in subsection

(1), it may enter an order imposing one or

more of the following penalties:

(a) Denial of an application for licensure.

(b) Revocation or suspension of a license.

(c) Imposition of an administrative fine not

to exceed $5,000 for each count or separate

offense.

(d) Issuance of a reprimand.

(e) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board may specify.

(f) Restriction of the authorized scope of

practice by the licensee.

(g) Restitution.

(4) The management corporation shall reissue

the license of a disciplined engineer or

business upon certification by the board that

the disciplined person has complied with all

of the terms and conditions set forth in the

final order.

20. The Florida Board of Engineers has defined the term

"negligence" as required by Section 471.033(2), Florida Statutes,

in Florida Administrative Code Rule 61G15-19.001(4). The

definition in the Rule provides:

(4) A professional engineer shall not be

negligent in the practice of engineering.

The term negligence set forth in Section

471.033(1)(g), F.S., is herein defined 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. Professional engineers shall

approve and seal only those documents that

conform to acceptable engineering standards

and safeguard the life, health, property and

welfare of the public.

Failure to comply with the procedures set

forth in the Responsibility Rules as adopted

by the Board of Professional Engineers shall

be considered as non-compliance with this

section unless the deviation or departures

therefrom are justified by the specific

circumstances of the project in question and

the sound professional judgment of the

professional engineer.

21. Florida Administrative Code Rule 61G15-33.003 is

considered one of the Responsibility Rules of the Board.

Subsection (2) provides in pertinent part:

(2) Electrical Engineering Documents

applicable to power systems shall at a

minimum indicate the following:

(a) Power Distribution Riser Diagram with

short circuit values.

* * *

(h) Load computations.

22. Petitioner has proven by clear and convincing evidence

that, with respect to the electrical deficiencies alleged in

paragraph 5.b. of the Administrative Complaint, Respondent has

violated both Section 471.033(1)(g), Florida Statutes, and Rule

61G15-33.003(2). As stated in the findings of fact, neither a

power distribution riser diagram nor load calculations were

included in the plans for the church project. Failure to adhere

to the requirements to include the electrical riser diagram, the

load calculations and the circuitry of all outlets, equipment and

devices violated the rule, and therefore constitutes negligence

as contemplated by Section 471.033(1)(g).

23. Petitioner has not demonstrated a violation of Section

471.033(1)(g) with respect to the failure to include calculations

for the outside air requirements. Petitioner's expert witness

did not cite to a specific provision in the Florida Building Code

and the Petitioner did not provide a copy of the Code. Likewise,

while Petitioner's expert referred to Florida Administrative Code

61G15-34.003 as requiring the outside air calculations,

Respondent was not charged with violating Rule 61G15-34.003.

24. The same can be said for the allegations related to the

failure to provide for plumbing cleanouts. No specific citation

in the Florida Building Code was cited, either in testimony or by

providing the Code itself. Moreover, an examination of the

portion of the Florida Building Code related to cleanouts

references several predicate requirements for two-way cleanouts

that were not established. While Florida Administrative Code

Rule 61G15-34.007 was referenced by Petitioner's expert witness,

Respondent was not charged with violating this rule.

25. The Board has adopted disciplinary guidelines for

imposing penalties, as required by Section 455.2273, Florida

Statutes. For negligence in violation of Section 471.033(1)(g),

Florida Statutes, the minimum penalty is a reprimand, two years'

probation and a $1,000 fine. Fla. Admin. Code R. 61G15-

19.004(2)(g). Petitioner has asked for this minimum penalty

under the guidelines.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that the Florida Board of Professional Engineers

enter a Final Order finding that Respondent is guilty of

violating Section 471.033(1)(g), Florida Statutes (2006), and

Florida Administrative Code Rule 61G15-33.003(2). It is further

recommended that Respondent be reprimanded, fined $1,000, that

his license be placed on probation for a period of two years,

and that costs be assessed pursuant to Section 455.227(3),

Florida Statutes.

DONE AND ENTERED this 20th day of January, 2010, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of January, 2010.

COPIES FURNISHED:

John Jefferson Rimes, Esquire

Board of Professional Engineers

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

Kamal Yazji, P.E.

5488 River Trail Road, South

Jacksonville, Florida 32277

Paul J. Martin, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 should be filed with the agency that will

issue the final order in this case.