94-004312 Board Of Professional Engineers vs. Alberto Ramirez Status: Closed Recommended Order on Monday, July 24, 1995.

Summary: Respondent served as special inspector and passed roof which did not meet code; no evidence respondent knowingly falsified inspection report but inspection was negligent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF PROFESSIONAL ENGINEERS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4312

)

ALBERTO RAMIREZ, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this

case on November 8, 1994, in Miami, Florida, before J. Stephen Menton, a duly

designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Chief Attorney

Mary Ellen Clark, Attorney

Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Reydel (Sonny) Santos, Esquire

Inter-American Law Center

10753 Southwest 104th Street

Miami, Florida 33176-8842

STATEMENT OF THE ISSUES

The issue in this case is whether Respondent committed negligence in the

practice of engineering as alleged in the amended administrative complaint filed

by Petitioner and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On March 23, 1994, Petitioner, the Department of Business and Professional

Regulation (the "Department"), filed an Administrative Complaint against

Respondent charging him with violating Chapter 471, Florida Statutes, in

connection with Respondent's activities as a special inspector for Dade County.

The allegations focus on Respondent's inspection of a re-roofing job for a

single family residence located at 8050 SW 92nd Avenue in Miami and his

preparation of a Daily Field Inspection Form which states "[t]he entire roof

completed as per the codes and specifications". Petitioner alleges that

Respondent and/or his designee did not inspect the entire roof but merely

performed a spot check. A supplemental inspection by the Metropolitan Dade

County Building and Zoning Department allegedly found the roof to be deficient,

requiring corrections. Count I of the Administrative Complaint alleged that

Respondent is guilty of fraud or deceit, negligence, incompetence, or misconduct

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

Statutes. Count II charges Respondent with making or filing a report which he

knew was false in violation of Section 471.033(1)(e), Florida Statutes.

Respondent submitted an Election of Rights Form on May 16, 1994, disputing

the material facts contained in the Administrative Complaint and requesting a

formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was

referred to the Division of Administrative Hearings and assigned to Hearing

Officer William J. Kendrick who noticed a formal hearing for November 8, 1994,

in Miami, Florida.

On October 21, 1994, the parties filed a Joint Stipulation for Continuance

which was rejected by Hearing Officer Kendrick in an Order entered October 24,

1994. On November 1, 1994, Petitioner filed a Motion for Leave to Amend

Administrative Complaint. The proposed Amended Administrative Complaint only

changed the allegations regarding the date and location of the inspection at

issue. On November 3, 1994, Petitioner filed a Motion to Disqualify Counsel for

Respondent. On November 5, 1994, Respondent filed a Motion for Expedited

Request for Production of Documents. On November 7, 1994, Hearing Officer Linda

Rigot, in anticipation of taking over this case, conducted a telephonic hearing

on the pending motions. In accordance with Hearing Officer Rigot's

instructions, the parties were able to resolve Respondent's Motion for Expedited

Request For Production of Documents through Petitioner's production of the most

crucial documents requested by Respondent. The remaining pending Motions were

deferred until the formal hearing.

During the late afternoon of November 7, 1994, this matter was assigned to

Hearing Officer J. Stephen Menton. At the hearing on November 8, 1994,

Respondent filed three pleadings: a Motion to Strike Petitioner's Motion to

Disqualify as Sham Pleadings and Impose Sanctions Against Petitioners; a Motion

to Dismiss Administrative Complaint; and a Motion to Strike Petitioner's Motion

For Leave to Amend Administrative Complaint. Respondent also filed a Witness

List and made a separate ore tenus motion to dismiss.

At the commencement of the hearing, the pending Motions were addressed.

Petitioner's Motion to Disqualify Counsel for Respondent was denied.

Respondent's Motion to Dismiss The Administrative Complaint was denied and

Petitioner's ore tenus motion to dismiss was also denied. Ruling was reserved

on Respondent's Motion To Strike Petitioner's Motion to Disqualify as Sham

Pleadings and Impose Sanctions Against Petitioners.

In addition, Petitioner's Motion For Leave to Amend Administrative

Complaint was granted. Since Respondent was on notice of the inspection at

issue and no prejudice was shown, the Amended Administrative Complaint was

accepted and the hearing proceeded as scheduled. At the commencement of the

presentation of its case, Petitioner dismissed Count II of the Amended

Administrative Complaint.

At the hearing, Petitioner presented the testimony of four witnesses:

Robert Brombach, the owner of the residence in question; Manuel Jimenez, a

roofing inspector for the Metropolitan Dade County Building & Zoning Department;

James O. Power, P.E., who was accepted as an expert in engineering; and Raphael

Droz-Seda, P.E., who was also accepted as an expert in engineering. Petitioner

offered five exhibits into evidence, all of which were accepted without

objection.

Respondent presented the testimony of three witnesses: Naamani, P.E., who

was accepted as an expert in engineering; Sergio Alcorta, P.E., who was accepted

as an expert in engineering; and Harry Carrasquillo, owner of the roofing

company that did the work in question. Respondent offered six (6) Exhibits (A-

F) into evidence, all of which were accepted.

A transcript of the proceedings has been filed. At the hearing, the parties

agreed to a schedule for filing proposed findings of fact and conclusions of

law. Subsequent to the hearing, Petitioner filed a Motion on behalf of the

parties requesting an extension of time in which to file the proposed

recommended orders. That Motion was granted and both parties timely submitted

proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the hearing and the

entire record in this proceeding, the following findings of fact are made:

1. At all times pertinent to this proceeding, Respondent was duly licensed

as a professional engineer in the State of Florida, having been issued license

number PE 0023976.

2. In September, 1992, Dade County passed and adopted an emergency

ordinance amending the South Florida Building Code to handle the processing of

construction permits and inspections created by the devastation of Hurricane

Andrew. Section 6(e) of the Emergency Ordinance addressed roof repairs and

required a minimum of six nails to be used for each shingle.

3. By early 1993, Dade County Roofing Inspectors were severely overtaxed

by the volume of work occasioned by Hurricane Andrew. To ensure more timely

inspections, Dade County Officials approved the use of private practice

architects and engineers to assist the county in making inspections and

affirming code compliance.

4. At all times pertinent to this case, Robert Brombach (the "Owner") was

the owner of a residence (the "House") located at 8050 SW 92nd Avenue, Miami,

Florida.

5. In March 1993, the Owner hired Hytek Roofing to re-roof his residence

because of damage from Hurricane Andrew. The re-roofing job was to begin on

March 8, 1993 and was to be completed by March 23, 1993.

6. At all times pertinent to this case, Respondent was employed by All

State Engineering & Testing Consultants, Inc.

7. Hytek Roofing hired Respondent in his capacity as a special inspector

for Dade County to perform the shingle inspection/final inspection for the re-

roofing of the House.

8. The roof of the House had two separate systems. The front and back of

the roof were pitched sufficient to hold shingles. There was also a flat deck

portion of the roof that had very little pitch. Prior to the repair work at

issue in this case, this flat portion was hot mopped and tarred.

9. Pursuant to the 1988 South Florida Building Code which was in effect at

the time of this re-roofing job, composition shingles were not to be applied to

roofs having an incline of less than 2 1/2 inches per foot.

10. After it completed re-roofing the shingled section of the roof, Hytek

contacted Respondent to do an inspection.

11. On March 23, 1993, Respondent conducted a "shingle inspection/final

inspection" of the roof and prepared a Daily Field Inspection Form (the

"Inspection Form".)

12. Respondent's Inspection Form states, "JOB DESCRIPTION: The entire

roof completed as per the codes and specifications...INSPECTION RESULTS:

Placement of shingles comply [sic] with the New South Florida Building Codes

[sic] and Requirement."

13. Respondent submitted his Inspection Form to the Metropolitan Dade

County Building & Zoning Department.

14. Subsequent to Respondent's inspection, Hytek Roofing applied shingles

to the flat deck portion of the roof.

15. After applying the shingles on the flat roof, Hytek contacted Dade

County building officials to conduct a roof inspection.

16. At all times pertinent to this proceeding, Manuel Jimenez was a

Metropolitan Dade County Building & Zoning Department Roofing Inspector.

17. On March 31, 1993, Jimenez conducted an inspection of the House's

roof.

18. During his inspection, Inspector Jimenez performed a spot check of the

roof on the front part of the House. All of the 20-30 shingles he examined in

the selected area did not comply with the six nail Dade County code requirement.

In fact, all of them were found to contain only three (3) nails a piece. In

addition, some of the nails were above the tar strip.

19. Jimenez also noted that the back of the roof did not appear to be

properly laid. The back roof shingles were not laid in accordance with the

manufacturer's recommendations nor were they straight.

20. After spot checking the front and back of the roof, Inspector Jimenez

noticed the shingles on the flat portion at the rear of the House. Using a

level, Inspector Jimenez measured the "pitch" on the flat roof as "one and one-

quarter to twelve" instead of the code required minimum of "two and one-half to

twelve." He concluded that the roof was in violation of the code because

shingles were used on the flat roof which did not have an adequate pitch.

21. On April 1, 1993, Jimenez issued a Summons to Hytek Roofing noting the

above violations and requiring corrections including the re-nailing of shingles

below the tar strip with six (6) nails per shingle, and the removal of the

shingles from the flat roof. The county also required that the back of the roof

be replaced.

22. The Metro Dade Building & Zoning Roofing Inspections Checklist

requires a shingle inspection to include an inspection of the tie-in to any flat

roof. Because the flat deck portion of this roof was in the back, Respondent

should have looked at the back of the roof in order to inspect the tie-in to the

flat deck.

23. Respondent introduced a number of form documents which reflect

language used in the industry by Special Inspectors when certifying the

completion of construction work. The standard language on those documents

provides that by filling in the designated blanks, the Special Inspector asserts

that the work, to the best of his knowledge or belief and professional judgment,

is in substantial accordance with the approved plans and the South Florida

Building Code. Respondent's Daily Field Inspection report was prepared on his

company's letterhead, not a form document and contained Respondent's statement

that the entire roof had been completed as per the codes and specifications.

24. Respondent's report did not contain the qualifying language set forth

on the forms presented at the hearing. In other words, Respondent did not

qualify his statement or state the extent of his investigation leading to that

statement.

25. After considering all the evidence, it is concluded that Respondent's

inspection was insufficient and that the conclusions set forth in his report

were inaccurate. Moreover, at least some of the Code Violations cited by the

county should have been detected by a reasonable inspection. Consequently, it

is concluded that Respondent failed to utilize due care in the performance of

his engineering duties.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this case pursuant to Sections 120.57(1) and

471.033, Florida Statutes.

27. Pursuant to Section 471.033, Florida Statutes, the Board of

Professional Engineers is empowered to revoke, suspend, or otherwise discipline

the license of a registered engineer who is found guilty of committing any of

the offenses enumerated in Section 471.033(1), Florida Statutes. In determining

whether a licensee has violated Section 471.033, Florida Statutes, as charged in

an administrative complaint, one "must bear in mind that it is, in effect, a

penal statute...This being true the statute must be strictly construed and no

conduct is to be regarded as included within it that is not reasonably

proscribed by it. Furthermore, if there are any ambiguities included such must

be construed in favor of...licensee." Lester v. Department of Professional and

Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977). Disciplinary

action with respect to a professional license is limited to the offense or facts

alleged in the administrative complaint. Sternberg v. Department of

Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla.

1st DCA 1985).

28. Petitioner has the burden of proving by clear and convincing evidence

the allegations against Respondent. See Ferris v. Turlington, 510 So.2d 292

(Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer

Services, 550 So.2d 112 (Fla. 1st DCA 1989).

29. The nature of clear and convincing evidence has been described in

Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983) as follows:

[C]lear 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 evidence must be

precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue.

The evidence must be of such weight that it

produces in the mind of the trier of fact the

firm belief of (sic) conviction, without hesitancy,

as to the truth of the allegations sought to be

established.

30. In the Amended Administrative Complaint Petitioner asserts that

Respondent has violated Section 471.033(1)(g), Florida Statutes, which provides

as follows:

(1) The following acts constitute grounds for

which the disciplinary actions in subsection (3)

may be taken:

* * *

(g) fraud, deceit...negligence, incompetence or

misconduct...in the practice of engineering.

31. Petitioner charges Respondent with violating the aforementioned

statute by performing "a spot check of the roof" and indicating on his

Inspection Form that "[t]he entire roof completed as per the codes and

specifications." Petitioner further alleges that Respondent "did not inspect the

entire roof as his Inspection Form implies."

32. The clear and convincing evidence in this case establishes that

Respondent was guilty of the violation charged.

33. Respondent's unqualified statement that the entire roof was completed

per the codes and specifications was not based on an adequate inspection. The

evidence established that the back portion of the roof (not including the flat

deck portion) had to be replaced due, in part, to the use of an insufficient

number of nails and placement of shingles above the tar strip. An appropriate

inspection would have revealed these defects and the failure to note them in a

final inspection constitutes negligence.

34. Respondent is also guilty of negligence and/or incompetence in the

practice of engineering as a result of his certification of the completion of

the entire roof as having been completed in compliance with the codes and

specifications when the flat portion of the roof had not been. The evidence

established that shingles were not installed in the flat portion of the roof

until after Respondent conducted his inspection. Thus, it cannot be concluded

that Respondent improperly certified a shingled roof with an inadequate pitch.

However, Respondent's Inspection Form inaccurately indicated that the entire

roof had been completed. If Respondent had properly inspected the entire roof,

Respondent should have inspected the tie-in between the flat roof and the newly

shingled roof. A proper inspection report should have, at a minimum, noted the

flat portion had not been repaired and noted the condition of the tie-in.

35. Respondent points out that it is impossible to inspect every shingle

of a roof and he contends that he conducted reasonable spot checks which did not

reveal any defects. Before signing a final inspection report, Respondent was

responsible for inspecting the roof in a manner that would reveal all reasonably

obvious defects. The existence of a single shingle without the required nails

may not be sufficient to establish that the inspection was negligently

conducted. Here, however, the evidence established that large portions of the

roof were not installed in accordance with Code. The failure of Respondent's

inspection to reveal these obvious defects establishes that the inspection was

negligently devised and/or conducted. In this regard, it should be noted that

Respondent's Inspection Form did not say he made spot checks or even that in his

opinion the roof was all right. Instead, he unequivocally affirmed that the

roof had been installed in accordance with Code.

36. Upon establishment of a violation of subsection 1 of Section 471.033,

Florida Statutes, subsection 3 of the statute authorizes the Board of

Professional Engineers to revoke or suspend a license, impose an administrative

fine not to exceed $1,000.00 for each count or separate offense, issue a

reprimand, place a licensee on probation for a period of time subject to such

conditions as the Board may specify and/or restrict the authorized scope of

practice by a licensee.

37. Rule 61G15-19, Florida Administrative Code, sets forth the

disciplinary guidelines adopted by the Board. Rule 61G15-19.004(2)(m), Florida

Administrative Code sets forth a range of penalties to be imposed upon a

licensee found guilty of negligence under Section 471.033(1)(g), Florida

Statutes. That range is from a minimum of a reprimand, two year probation and

$1,000.00 fine to a reprimand, $1,000.00 fine, 5 years suspension and 10 year

probation.

38. The Board can deviate from the stated range upon a showing of

aggravating or mitigating circumstances as set forth in Rule 61G15-19.004(3).

In this case, there is no evidence of prior disciplinary action against

Respondent. It appears that all defective work has been corrected to the

satisfaction of the Owner and there is no evidence of any other violations by

Respondent. Thus, a penalty in the minimum range is appropriate.

39. The final issue to be resolved in this case is Respondent's request

for the imposition of sanctions against Petitioner due to Petitioner's filing of

a Motion to Disqualify Respondent's counsel five days before the final hearing

in this matter. The Motion to Disqualify sought to preclude Respondent's

counsel from representation in this case on the grounds that Respondent's

counsel was formerly employed by Petitioner. In support of its Motion to

Disqualify, Petitioner cited Section 112.313(9)(a)4., Florida Statutes. At the

outset of the hearing in this matter, Petitioner's Motion to Disqualify was

denied on the grounds that there was no authority for applying the cited

statutory provision to proceedings conducted before the Division of

Administrative Hearings and because there as no indication that counsel for

Respondent had any direct involvement in the pending case while he was employed

by Petitioner. In support of his request for sanctions, counsel for Respondent

has pointed to some disturbing facts. Specifically, the Motion to Disqualify

was not filed until five days before the formal hearing in this case after a

motion to continue had been denied. Counsel for Respondent points out that he

had entered an appearance in this matter more than two months earlier and all of

the facts alleged in the Motion to Disqualify were known at that time.

Moreover, counsel for Respondent contends that Petitioner had filed a similar

motion which was denied in an unrelated case brought by Petitioner in which

counsel for Petitioner had entered an appearance. The facts cited by Respondent

raise some concern as to Petitioner's motivation in filing the Motion to

Disqualify. However, the Motion was summarily denied at the outset of the

hearing after limited argument. While the undersigned has concluded that the

prohibitions in Section 112.313(9)(a)4., Florida Statutes, are not applicable in

this case, it is recognized that there has been minimal interpretation as to the

scope of that statute. After considering all of the circumstances, it is

concluded that the imposition of sanctions in this case is not warranted.

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED:

That the Board of Professional Engineers enter a Final Order finding

Alberto Ramirez guilty of violating Section 471.033(1)(g), Florida Statutes, as

alleged in the Amended Administrative Complaint. As a penalty for the

violation, impose an administrative fine of one thousand ($1,000.00) dollars,

issue a reprimand, and place the license of Alberto Ramirez on probation for a

period of two (2) years with such reasonable terms as may be imposed by the

Board.

DONE AND RECOMMENDED this 24th day of July, 1995, in Tallahassee, Leon

County, Florida.

___________________________________

J. STEPHEN MENTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of July, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4312

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Adopted in substance in findings of fact 1.

2. Adopted in substance in findings of fact 4.

3. Adopted in substance in findings of fact 8.

4. Adopted in substance in findings of fact 5.

5. Rejected as unnecessary.

6. Adopted in substance in findings of fact 5.

7. Adopted in substance in findings of fact 7.

8. Adopted in substance in findings of fact 6.

9. Adopted in substance in findings of fact 11.

10. Adopted in substance in findings of fact 12.

11. Adopted in substance in findings of fact 13.

12. Adopted in substance in findings of fact 14.

13. Adopted in substance in findings of fact 16.

14. Adopted in substance in findings of fact 17.

15. Adopted in substance in findings of fact 18.

16. Adopted in substance in findings of fact 2.

17. Adopted in substance in findings of fact 9.

18. Adopted in substance in findings of fact 18.

19. Rejected as unnecessary.

20. Rejected as unnecessary.

21. Adopted in substance in findings of fact 19.

22. Adopted in substance in findings of fact 21.

23. Adopted in substance in findings of fact 21.

24. Subordinate to findings of fact 25.

25. Adopted in substance in findings of fact 22.

26. Adopted in substance in findings of fact 22.

27. Adopted in substance in findings of fact 23.

28. Adopted in substance in findings of fact 24.

29. Rejected as a summary of testimony rather than a finding of fact. The

subject matter is addressed in Findings of Fact 25 and in the Conclusions of

Law.

30. Rejected as a summary of testimony rather than a finding of fact. The

subject matter is addressed in Findings of Fact 25 and in the Conclusions of

Law.

31. Rejected as a summary of testimony rather than a finding of fact. The

subject matter is addressed in Findings of Fact 25 and in the Conclusions of

Law.

32. Adopted in substance in findings of fact 25.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Adopted in substance in findings of fact 1.

2. Rejected as unnecessary.

3. Adopted in substance in findings of fact 2.

4. Adopted in substance in findings of fact 3.

5. Adopted in substance in findings of fact 4 and 5.

6. Adopted in substance in findings of fact 8.

7. Adopted in substance in findings of fact 5.

8. Adopted in substance in findings of fact 10.

9. Adopted in substance in findings of fact 11 and 12.

10. Subordinate to findings of fact 25.

11. Rejected as unnecessary and subordinate to findings of fact 25.

12. Adopted in substance in findings of fact 12.

13. Subordinate to findings of fact 25.

14. Adopted in substance in findings of fact 14.

15. Adopted in substance in findings of fact 15.

16. Adopted in substance in findings of fact 16 and 17.

17. Adopted in substance in findings of fact 18.

18. Subordinate to findings of fact 19.

19. Adopted in substance in findings of fact 20.

20. Adopted in substance in findings of fact 20.

21. Adopted in pertinent part in findings of fact 21.

COPIES FURNISHED:

Angel Gonzalez

Executive Director

Dept of Business

and Professional Regulation

Board of Professional Engineers

1940 North Monroe St, Suite 60

Tallahassee, FL 32399-0792

Lynda L. Goodgame

General Counsel

Dept of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Charles F. Tunnicliff

Chief Attorney

Dept of Business

and Professional Regulation

1940 North Monroe St, Suite 60

Tallahassee, FL 32399-0792

Reydel (Sonny) Santos, Esq.

Inter-American Law Center

10753 SW 104th Street

Miami, FL 33176-8842

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.