04-003197PL Florida Engineers Management Corporation vs. James C. Tippens, P.E. Status: Closed Recommended Order on Thursday, May 5, 2005.

Summary: The evidence was not clear and convincing that the design of a porch addition to an existing residential structure was deficient. Recommend that the Administrative Complaint be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3197PL

)

JAMES C. TIPPENS, P.E., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted before Daniel M. Kilbride,

Administrative Law Judge of the Division of Administrative

Hearings , on January 14, 2005, in Clearwater, Florida.

APPEARANCES

For Petitioner: Douglas D. Sunshine, Esquire

Florida Engine ers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 323 07 - 5267

For Respondent: Jawder I. Rubaii, Esquire

1358 South Missouri Avenue

Clearwater, Florida 33756

STATEMENT OF THE ISSUE

Whether Respondent was negligent in the practice of

engineering as a result of alleged deficiencies in a porch

addition to a residential structure , as alleged in the

Administrative Complaint .

PRELIMINARY STATEMENT

By Administrative Complaint dated June 4, 2004, the Florida

Engineers Ma nagement Corporation ( Petitioner ) , notified James C.

Tippens ( Respondent ) that it intended to take disciplinary

action pursuant to Chapters 455 and 471, Florida Statutes

(2004) , against his professional engineer's license. Respondent

timely requested a fo rmal hearing on July 2, 2004, and the

matter was forwarded to the Division of Administrative Hearings

on September 9, 2004, for assignment of an Administrative Law

Judge and discovery ensued. This matter was continued once at

the request of Petitioner. P rior to the commencement of the

hearing, Petitioner moved to amend p aragraph 5.c. of the

Administrative Complaint due to a scrivener's error and, without

objection, the reference to the " 24 plf " was amended to " 34

plf. "

At hearing, Petitioner presented th e testimony of one

expert witness: San t iago Aranegui, P.E. In addition ,

Petitioner moved six exhibits into evidence, all of which were

admitted. Petitioner also presented four demonstrative exhibits

for identification . Respondent testified on his own b ehalf and

presented the testimony of one expert witness: Arnold E.

Somers, Jr., P.E., Ph.D. Respondent moved one exhibit into

evidence, which was admitted. Pursuant to the Administrative

Law Judge's request, a copy of Table 1606.2A from the Florida

Buil ding Code (FBC) entitled, "Main Wind Force Resisting System

Windloads for Building with Mean High Roof Height of 30 Feet

Located in Exposure B" and Table 1606.2B of the FBC entitled,

"Component and Cladding Windloads for Building with Mean Roof

Heights of 30 Feet Located in Exposure B , " was admitted in

evidence.

At the conclusion of the evidentiary portion of the

hearing, the parties were advised of their right to file

proposed recommended orders. A deadline was established at ten

days from the date of th e filing of the transcript of the

hearing for the filing of post - hearing submittals.

The hearing Transcript , consisting of one volume , was filed

on March 7, 2005. On March 16, 2005, Petitioner filed a motion

for extension of time to file a p roposed r ecom mended o rder. By

Order dated March 17, 2005, over Respondent's objection,

Petitioner's motion for extension was granted. Petitioner was

directed to file its proposed recommended orders no later than

April 4, 2005. Petitioner timely filed its Proposed Re commended

Order. Respondent filed his Proposed Order on March 15 , 2005.

Both parties' proposals have been given careful consideration in

the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon the evidence, the following F indings of F act are

made:

1. Petitioner is charged with regulating the practice of

engineering pursuant to Chapters 455 and 471, Florida Statutes

(2004) .

2. Respondent is, and ha s been at all times material to

this matter , a licensed professional engineer in the State of

Florida, having been issued License N o. PE 12217.

3 . Pursuant to the terms of a stipulation entered into

between Respondent and the Board of Professional Engineers

(Board) on a prior matter, Respondent provided the Board with a

list of all Respondent's projects completed at 6 - and 18 - month

intervals. One of these projects was a Terks Contracting

Construction, Inc. (Terks Contracting) , project for a screened

porch addition. Respondent testified he was retained for the

purpose of producing drawings cont aining specifications for the

contractor for the slab, supports, spanning members, the

connectors, and other elements.

4. Respondent is the engineer of record for the Terks

Contracting's covered porch addition to an existing single -

family house.

5. Res pondent analyzed the windloads for the wood joists,

wood beam, and the uplift supports. He calculated not only the

gravity load, but considered the uplift load, as well.

6. T he analysis of windloads are covered by Tables 1606.2A

and 1606.2B of the FBC. Petitioner testified he used these

tables in his design of the covered porch . These tables are a

simplified ver s ion of the standards of the American Society of

Civil Engineers, Chapter 7 - 98 ( ASCE 7 ) .

7. Respondent's determination of the components and

cladding wind pressure are not inconsistent with the standards

of the ASCE 7 , which is the windload provision of the FBC.

8. Respondent's calculations state that the rafters

experience a uniform uplift load of 34 pounds per linear foot

(plf) for the inte rior zones, and 38.4 pounds per squ a re foot

(psf) and 30.1 psf, respectively , for the endzones .

9. Respondent is not mistaken in treat ing the overhang

area and the endzones as two different areas adjacent to each

other . T o the extent the endzone (or edg e zone) has higher wind

pressures, Respondent calculated that the new structure would

not adversely affect the existing house , if the new joists were

attached to the top plate of the existing house.

1 0 . Respondent's calculations and drawings do not

adve rsely a ffect how the covered porch addition affects the

existing structure . Respondent 's plan calls for the new joists

to be connected to the top plate , which is part of the wall of

the existing house, using a Simpson H 2.5 connector and to be

set along s ide the existing truss members. The new joists were

not attached to the existing trusses. In addition, a n ailing

pattern was selected for the plywood sheathing panels that

accounted for variable wind pressures using the higher endzone

windload for the en tire area.

1 1 . However, Aranegui testified that he did not make any

calculations to determine if, in fact, the specifications in the

drawings were inadequate or incorrect. Petitioner's witness

testified that he did not inspect the structure or speak wit h

Respondent regarding the design of the structure. Aranegui did

not take issue with Respondent's specifications for components

or materials for the structure. Petitioner presented no

evidence that there had been any complaints about the integrity

of the structure, that the structure was deficient or unsafe in

any manner, or that the structural elements as shown on the

plans and , as built , did not meet engineering or FBC

requirements.

1 2 . Aranegui testified that his opinions were based solely

on two docu ments : the plans for the additions, Petitioner's

Exhibit 1 ; and Respondent's calculations, Petitioner's

Exhibit 2. Petitioner's expert witness testified that his

concern came from his review of the paper calculations done by

Respondent, and he believed t he calculation sheet (not the

plans) did not show consideration of windloads or complete

analysis.

1 3 . However, Aranequi did not identify any requirement

that these calculations be shown on paper and not just on the

plans, nor did he identify any engineer ing practice imposing a

duty on Respondent to write these calculations down. As noted

below, there is convincing evidence that these concerns were

considered and addressed by Respondent in the plans.

1 4 . Aranegui testified that his concern arose from his

belief that the entire project in question should have been

treated as a large overhang. However, Aranegui did not identify

any provisions of the building code requiring Respondent to

treat the screen porch addition as an overhang and did not

identify an y specific engineering practice that imposed a duty

on Respondent to approach the design of the project as a large

overhang. Aranegui's opinions were based on the assumption that

because the plans and the calculation sheet he reviewed did not,

in his opin ion, show that certain matters were considered, they

were not , in fact , considered in the design of the structure.

Aranegui also testified he did not find an actual error or

miscalculation in Petitioner's Exhibit 2.

15 . The evidence is convincing that th e design of the

porch addition was sound and safe and met all required

structural requirements.

16. The evidence is not clear and convincing that

Respondent was negligent in the practice of enginee ring in a

porch addition to a residential structure.

CONC LUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties pursuant to

Section 120.569 and Subsection 120.57(1), Florida Statutes

(2004).

18. Petitioner is a Florida not - for - profit corporation

cre ated by the Legislature "to provide administrative,

investigative, and prosecutorial services" to the Board. It is

authorized to bring this action against Respondent pursuant to

Section 471.038, Florida Statutes (2004) .

19. Respondent, as a licensed prof essional engineer in the

State of Florida, is subject to discipline by the Board.

§ 471.033, Fla. Stat. (2004) .

20. Pursuant to Subs ection 471.033(3), Florida Statutes

(2004) , the Board is empowered to revoke, suspend , or otherwise

discipline the license of a professional engineer for violations

of Subsection 47.033(1)(g), Florida Statutes (2004) .

21. Disciplinary licensing proceedings are penal in

nature. State ex rel. Vining v. Florida Real Estate Commission ,

281 So. 2d 487 (Fla. 1973). In this disci plinary licensing

proceeding, Petitioner must prove the alleged violations of

Subsection 471.033(1)(g), Florida Statutes (2004) , by clear and

convincing evidence. Department of Banking and Finance v.

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

22. S ubsection 471.033(1)(g), Florida Statutes (2004) ,

provides in pertinent part:

(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.

23. The Board defines " negligence " as "the failure by a

professional engineer to utilize due c are in performing in an

engineering capacity or failing to have due regard for

acceptable standards of engineer ing 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. " Fla . Admin .

Code R . 61G15 - 19.001(4).

2 4 . Where the l icensee is charged with a violation of

professional conduct and the specific acts of conduct required

of the professional are explicitly set forth in the statute or

valid rule promulgated pursuant thereto, the burden on the

agency is to show a deviation fr om the statutory required acts;

but where the agency charges negligent violation of general

standards of professional conduct, i.e., the negligent failure

to exercise the degree of care reasonably expected of a

professional, the agency must present expert testimony that

proves the required professional conduct, as well as the

deviation therefore. See Purvis v. Department of Professional

Regulation , 461 So. 2d 134 (Fla. 1st DCA 1984).

2 5 . With respect to the allegation of paragraph 5(a) of

the Administrati ve Complaint, Petitioner did not produce any

evidence of a legal requirement that the plans or the written

calculations done for the plans treat the structure as an

overhang or specifically show higher windloads. Moreover,

Respondent testified he did cons ider the windloads for the

structure using T ables 1606.2A and 1606.2B.

2 6 . With respect to paragraph 5(b), Petitioner failed to

produce sufficient evidence of any legal requirement that

Respondent use the area of the 4x8 plywood panel to determine

wind pr essure. Aranegui testified that Respondent used a

"conservative" approach to the design. Respondent analyzed the

load for the area with the highest load and used this number for

the entire area.

27 . With respect to paragraph s 5(c) and 5(d), these

relate d allegations depend on Petitioner's expert witness'

opinion that the structure b e treated as an overhang for

purposes of approaching the design. Again, Petitioner did not

testify to any legal requirement or duty imposed on Respondent

to use this approach .

28 . With respect to paragraph 5(e), the plans clearly show

Respondent considered the effect on the existing structure by

his selection of the appropriate Simpson connector.

2 9 . In this case, Petitioner presented no evidence of any

deficiencies in Respo ndent's plans. Indeed, Petitioner's expert

witness specifically stated he did not make any calculations to

allow him to determine if the actual plans or the actual

structure was deficient. Petitioner's theory in this case rests

on an opinion that the str ucture should be treated as an

overhang. Yet, there was no legal requirement proven by

Petitioner establishing this as the only approach to the design.

See Florida Engineers Management Corporation v. Stanley Newton ,

Case No. 02 - 2536PL (DOAH December 20, 2002). Aranegui's other

opinion related to the connection between the new structure and

the old was based on the incorrect assumption that the joists of

the screen porch addition were connected to the trusses of the

existing structure . I n fact, as shown on the plans, the new

joist s were connected by a Simpson H 2.5 connector to the top

plate of the wall of the existing structure. The opinion was

based on an incorrect assumption and is insufficient to prove

negligence.

30 . Petitioner failed to establish by clear and convincing

evidence that Respondent engaged in negligence in the practice

of engineering, to the extent the evidence adduced at hearing

failed to establish clearly and convincingly that Respondent's

drawings and calculations evince a misunders tanding of the

requirements of the standards of ASCE 7; a misunderstanding of

how to calculate the uplift pressures for endzones; a mistaken

treatment for determining the components and cladding wind

pressures; or a misunderstanding and treatment of overha ngs.

Respondent did not fail to re - analyze the wood joists, the wood

beam, and the uplift supports for the applicable higher loads ;

and his calculations did provide for how the new covered patio

would affect the existing structure.

31 . Consequently, Res pondent's conduct does not constitute

a violation of Subsection 471.033(1)(g), Florida Statutes

(2004) .

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Board of Professional Engineers enter

a fin al order finding Respondent, James Tippens, P.E., not

guilty of negligence in the practice of engineering as alleged

and that the Administrative Complaint filed in this cause be

dismissed.

DONE AND ENT ERED this 5th day of May , 2005 , in Tallahassee,

Leon County, Florida.

S

DANIEL M. KILBRIDE

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 ( 850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of May , 2005 .

COPIES FURNISHED :

Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahas see, Florida 32303 - 5267

Jawdett I. Rubaii, Esquire

1358 South Missouri Avenue

Clearwater, Florida 33756

Natalie A. Lowe, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

2507 Callaway Road, Suite 2 00

Tallahassee, Florida 32303 - 5267

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

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.