97-002916 Board Of Professional Engineers vs. Alberto Luis Ribas Status: Closed Recommended Order on Wednesday, August 12, 1998.

Summary: Department failed to prove Respondent was negligent in the practice of engineering and, therefore, the administrative complaint should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

AND PROFESSIONAL REGULATION, )

BOARD OF PROFESSIONAL ENGINEERS, )

)

Petitioner, )

)

vs. ) Case No. 97-2916

)

ALBERTO LUIS RIBAS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 29 and 30, 1998, before Patricia Hart Malono, a duly

designated Administrative Law Judge of the Division of

Administrative Hearings. The hearing was held by video

teleconference, with the Petitioner and the Respondent appearing

at Miami, Florida.

APPEARANCES

For Petitioner: Mary Ellen Clark, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Pedro R. Munilla, Esquire

1401 Southwest First Street, Suite 210

Miami, Florida 33135

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Second Amended Administrative Complaint dated June 13, 1997,

and if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In a Second Amended Complaint dated June 13, 1997, the

Department of Business and Professional Regulation ("Department")

charged Alberto L. Ribas with a violation of Section

471.033(1)(g), Florida Statutes, asserting specifically that he

committed negligence in the practice of engineering by failing to

use due care in performing in an engineering capacity and by

failing to have due regard for acceptable standards of

engineering principles. Mr. Ribas timely requested a formal

administrative hearing, and the Department transmitted the file

to the Division of Administrative Hearings for assignment of an

administrative law judge. The formal hearing was held on

January 29 and 30, 1998.

At the hearing, the Department presented the testimony of

the following witnesses: Alberto Costa; Frank Zuloaga, formerly

a supervisor of roofing inspectors for the Metropolitan Dade

County Building and Zoning Department; and John Pepper, an expert

in the practice of engineering and inspections. Petitioner's

Exhibits 1 through 4, 4a, 5 (except for the bottom half of page

four), 6, and 8 through 10 were offered and received into

evidence. Ruling on the admission of the document included as

the second half of page four of Petitioner's Exhibit 5 was

withheld until issuance of this Recommended Order. Considering

all of the testimony presented regarding this document, this

document was not properly authenticated. It is, therefore, not

admissible in evidence, see Section 90.901, Florida Statutes, and

is hereby rejected.

Mr. Ribas testified in his own behalf and offered the

testimony of Manuel Jimenez, a supervisor of roofing inspectors

for the Metropolitan Dade County Building and Zoning Department,

and of Mohamad Sonny Salleh, an expert in engineering and in

testing roofing structures. Respondent's Exhibits 5, 9, and 12

through 20, which consists of pages one and two of Petitioner's

Exhibit 8, were offered and received into evidence. Mr. Ribas

was to provide the Division of Administrative Hearings with a

copy of Respondent's Exhibit 17, which was omitted from his

prefiled exhibits; he did not do so, and that exhibit has not

been considered in preparing this order.

A transcript of the proceeding was filed with the Division

of Administrative Hearings, and the parties timely submitted

proposed findings of fact and conclusions of law, which have been

duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department of Business and Professional Regulation

("Department") is the state agency responsible for regulating the

practice of engineering in Florida and for investigating and

prosecuting complaints against licensed engineers. Sections

455.201 and .225, Florida Statutes. The Board of Professional

Engineers ("Board") is the state agency responsible for

certifying candidates for licensure as engineers and for

disciplining licensed engineers. Sections 471.007, .015, and

.033, Florida Statutes.

2. At the times material to this action, Alberto L. Ribas

was licensed by the Department as a professional engineer, having

been issued license number PE 0014452. Mr. Ribas has been a

licensed professional engineer in Florida since 1970.

3. On or about November 18, 1992, Mr. and Mrs. Alberto

Costa entered into a contract with Miguel M. Cruz for the

re-roofing of their home located in Miami, Florida, after it had

been damaged by Hurricane Andrew. The job involved the

installation of Venezuelan Clay "S" roofing tiles, and building

permit number 93093185 was issued by the Metropolitan Dade County

Building and Zoning Department on January 7, 1993. According to

the building permit, the re-roofing job would require the

installation of 3200 roofing tiles covering 3200 square feet.

4. At some point during the installation of the roof,

Mr. Costa noticed what he thought were problems with the way the

tiles had been nailed to the roofing deck. He immediately

telephoned the Metropolitan Dade County Building and Zoning

Department and requested an inspection.

5. On March 22, 1993, Mr. Frank Zuloaga, then a supervisor

of roofing inspectors with the Metropolitan Dade County Building

and Zoning Department, conducted an inspection of the work

completed to date on the roof of Mr. Costa's residence.

Mr. Zuloaga noted on the inspection tag that he left on the site

that, among other things, "[t]iles must have 2 nails." He did

not approve the installation of the roofing tiles he inspected

and prepared a notice dated March 25, 1993, in which he advised

Mr. Cruz that he was in violation of the South Florida Building

Code. Mr. Zuloaga specifically stated in the notice that the

roofing tiles were not installed according to manufacturer's

specifications; that Mr. Cruz had failed to call for an earlier,

mandatory inspection; and that the workmanship was not according

to code. Mr. Zuloaga required in the notice that the work be

corrected by April 21, 1993, by removing non-complying tiles and

installing tiles in accordance with manufacturer's specifications

and by ensuring that the workmanship on the job reflected

installation in "accordance with SFBC [South Florida Building

Code] and the mfr [manufacturer's] recommendation."

6. At some point, Mr. Cruz asked Mr. Ribas to look at the

roofing tiles he had installed on Mr. Costa's residence and to

write a letter to the Metropolitan Dade County Building and

Zoning Department expressing his opinion about the adequacy of

the installation. After inspecting the installation of 600 of

roofing the tiles, Mr. Ribas wrote a letter addressed to the

"Metro Dade County Building Department" which stated in its

entirety:

Re: Residence at 10361 Sw 15th Terrace

Permit No. 93-093185, Dated 1-7-93

Gentlemen:

This is to certify that after having

inspected the roof of the above listed

residence, I have found about 600 roofing

tiles properly installed and anchored with a

common #10 hot dipped galvanized nail and

RT600 adhesive applied to same, making for a

stronger layout than the one specified for by

the manufacturer.

The letter was signed by Mr. Ribas, who identified himself as

"Albert L. Ribas, P.E., Registration #14452." Mr. Ribas gave the

letter to Mr. Cruz and had no other involvement with the Costa

roofing project.

7. The inspection of the roofing tiles was not undertaken

by Mr. Ribas to determine if the tile installation conformed with

the South Florida Building Code, and the letter he wrote

expressing his opinion about the installation of the 600 roofing

tiles did not, and was not intended to, certify that the

installation was complete or that the installation was done in

accordance with the South Florida Building Code. Mr. Ribas was

not aware at the time he inspected the roof that Mr. Zuloaga had

issued a notice of violations on March 25, 1993.

8. During the times material to this proceeding,

Metropolitan Dade County accepted building inspection reports

from independent contractors under contract with the Building and

Zoning Department for such services. These contractors were

required to be certified by the Metropolitan Dade County Board of

Rules and Appeals. In addition, final building inspection

reports were accepted from special inspectors, who were hired by

a property owner to inspection a particular project. The code in

effect in 1993 required that a person be approved as a special

inspector by the appropriate authorities. Mr. Ribas was not

acting in the capacity of a special inspector when he inspected

the 600 roofing tiles installed on the roof of Mr. Costa's

residence.

9. The permit history file maintained by the Metropolitan

Dade County Department of Building and Zoning does not contain

the April 30 letter written by Mr. Ribas, and there is no record

that the letter was logged onto the computer as part of the

permit history file nor that it was accepted by the Metropolitan

Dade County Building and Zoning Department as the final

inspection of the roof on Mr. Costa's residence. The letter does

not appear in the microfilm copy of the permit file maintained

Metropolitan Dade County Building and Zoning Department for the

re-roofing project.

10. There are a number of things which must be done

correctly in order for roofing tiles to be properly installed:

You look for several things. You look

at the method of attachment, you look at head

lap, you look at the side laps, you look how

they're put together, you look whether

they're installed on batons, if those batons

are vertical or horizontal or they're

installed directly to the sheathing itself.

You look at the membranes beneath it and

assure, that if it's required, that proper

sealants have been used for nails to

penetrate, so the roof won't leak later.

That's the majority of the things. 1/

11. The actual tiles that had been installed on the roof of

Mr. Costa's residence at the time Mr. Ribas looked at the roof

were Lifetile's Espana S-Style Tile for Nail-on System. The

Product Control Notice of Acceptance for these tiles was approved

on April 13, 1992, by the Metropolitan Dade County Board of Rules

and Appeals and was effective until April 13, 1995. The specific

conditions of the acceptance permitted these tiles to be used for

nail-on systems and provided in subsection (g): "All tiles shall

be fastened with a minimum two ten penny corrosion resistant

minimum hot dipped galvanized nails . . . ."

12. The South Florida Building Code in effect in April 1993

required that the type of roofing tiles installed on Mr. Costa's

residence be "nailed with two galvanized nails." At the time

Mr. Ribas wrote the April 30, 1993, letter, all of the inspectors

were aware that the South Florida Building Code required

installation of the Espana "S" tiles with two galvanized nails,

and, according to Mr. Zuloaga, it would have been obvious to the

inspectors that the installation did not conform to the South

Florida Building Code.

13. Pro-Series RT-600 Roof Tile Adhesive was approved by

the Metropolitan Dade County Board of Rules and Appeals,

effective from October 21, 1991, through October 21, 1994. The

specific conditions stated in the Notice of Acceptance provides:

"This approves Pro-Series RT-600 ä a roof tile adhesive used for

the repair of existing roofs. However, the application of this

product may be used with new construction in addition to the

requirements for a nail-on system ." When used with a nail-on

system, RT-600 adhesive is used to adhere the tiles to each

other, not to the roof deck.

14. At the time he inspected the roofing tiles, Mr. Ribas

knew that the manufacturer's specifications and the South Florida

Building Code required the tile to be installed with two nails.

He also knew that RT-600 had been approved for some uses by the

Metropolitan Dade County Board of Rules and Appeals. Mr. Ribas

formed the opinion expressed in the April 30 letter that

attaching the tile with one nail and TR-600 provided a stronger

installation than the manufacturer's specifications on his

experience with RT-600 adhesive, which was in general use in the

area after Hurricane Andrew; on his knowledge of general

engineering principles; and on his years of experience as an

engineer. He did not arrange to have the tiles tested to

determine if his opinion regarding the strength of the layout

would be borne out by test results.

15. In 1996, after the Department filed its initial

Administrative Complaint against him, Mr. Ribas contacted Mohamad

Salleh, a licensed professional engineer who is also certified to

conduct nail pull and tile uplift tests on roofing materials.

Mr. Ribas asked Mr. Salleh's opinion as to whether the

installation of a tile with one nail and RT-600 adhesive provided

a stronger layout than the installation of a tile with two nails

and no adhesive.

16. In Mr. Salleh's opinion, it is obvious to a trained and

experienced engineer that the tile installed with one nail and

adhesive would provide the stronger installation. However, at

Mr. Ribas' request, Mr. Salleh conducted a test to measure the

amount of uplift on tiles installed with the two systems, using

Protocol PA-106, established by the Metropolitan Dade County

Office of Building Code Compliance. Protocol PA-106 "is a

product application control test to confirm either: 1) sufficient

bonding by the mortar or adhesive to the tile and underlayment in

a mortar or adhesive set tile system; or 2) effective mechanical

attachment of components within a rigid, discontinuous roof

system." Mr. Salleh used this test because it would be the most

appropriate test for his purposes.

17. Mr. Salleh concluded from the results of the test that

the installation method using one nail and RT-600 adhesive

produced a stronger installation than the method using two nails

and no adhesive.

18. On June 3, 1993, Mr. Zuloaga re-inspected the roof of

Mr. Costa's residence both as a follow-up to the March 22

inspection and in response to a complaint. Mr. Zuloaga found

that none of the violations included in the notice to Mr. Cruz

dated March 25, 1993, had been corrected. At some point,

Mr. Costa hired another roofing contractor to complete the re-

roofing job.

19. The evidence presented by the Department in this case

is not sufficient to establish with the requisite degree of

certainty that Mr. Ribas failed to adhere to acceptable standards

of engineering principles or failed to use due care in

formulating the opinion stated in his letter of April 30, 1993.

2/ Furthermore, there is no evidence in this case to support a

finding that Mr. Ribas's April 30, 1993, letter was submitted to

the Metropolitan Dade County Department of Building and Zoning in

the normal course of its business; there is no evidence to

support a finding that Mr. Ribas intended the Metropolitan Dade

County Department of Building and Zoning to accept the letter as

the final inspection of the roof; and, there is no evidence to

support a finding that the Metropolitan Dade County Department of

Building and Zoning accepted the letter as the final inspection.

Finally, there is no credible evidence to support a finding that,

considering the entire text of the April 30 letter, Mr. Ribas

intended to certify that the installation of the roofing tiles he

inspected was done in accordance with the South Florida Building

Code simply because he stated that the tiles were "properly

installed."

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Section 120.57(1), Florida

Statutes (1997).

21. In its Second Amended Administrative Complaint, the

Department has requested that administrative penalties including

suspension or revocation of his license or imposition of an

administrative fine be imposed against Mr. Ribas. Accordingly,

the Department must prove the allegations by clear and convincing

evidence. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Co. ,

670 So. 2d 932, 933-34 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987). In Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983), the court observed:

[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 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 conviction, without

hesitance, as to the truth of the allegations

sought to be established.

22. Section 471.033(1)(g), Florida Statutes, provides that

the Board may take disciplinary action against a licensed

engineer if he or she has committed the act of "[e]ngaging in

fraud or deceit, negligence, incompetence, or misconduct, in the

practice of engineering."

23. The Board has provided in Rule 61G15-19.001(4), Florida

Administrative Code, that

[a] professional engineer shall not be

negligent in the practice of engineering.

The term negligence set forth in

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

24. Based on the findings of fact herein, the Department

has failed to meet its burden of proving by clear and convincing

evidence that Mr. Ribas committed negligence in the practice of

engineering.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Engineering of the

Department of Business and Professional Regulation enter a final

order dismissing the Second Amended Administrative Complaint

against Alberto L. Ribas.

DONE AND ENTERED this 12th day of August, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of August, 1998.

ENDNOTES

1/ Testimony of John Pepper, transcript at page 157-58.

2/ The Department's two expert witnesses opined that Mr. Ribas

failed to adhere to acceptable standards of engineering

principles and failed to use due care in formulating his opinion

regarding the relative strength of the installation of the

roofing tiles because he did not conduct extensive testing to

support the opinion before he stated the opinion in a letter

addressed to the Metropolitan Dade County Building and Zoning

Department. The opinions of the Department's experts are

rejected. See Easkold v. Rhodes , 614 So. 2d. 495, 497 (Fla.

1993); Gray v. Russell Corp. , 681 So. 2d 310, 316 (Fla. 1st DCA

1996).

COPIES FURNISHED:

Natalie A. Lowe, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Pedro R. Munilla, Esquire

MUNILLA & ASSOCIATES, P.A.

1401 Southwest First Street

1401 Professional Center, Suite 210

Miami, Florida 33135

Lynda L. Goodgame

General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Dennis Barton, Executive Director

Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this R ecommended O rder. Any exceptions to

this R ecommended O rder should be filed with the agency that will

issue the F inal O rder in this case.