06-001871PL Florida Engineers Management Corporation vs. Julian B. Irby, P.E., And Irby Engineering And Construction, Inc. Status: Closed Recommended Order on Tuesday, August 29, 2006.

Summary: Petitioner did not demonstrate by clear and convincing evidence that Respondent`s design plans for a relocation project were negligently prepared.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS )

MANAGEMENT CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 06 - 1871PL

)

JULIAN B. IRBY, P.E., )

AND IRBY ENGINEERING )

AND CONSTRUCTION, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

On July 31, 2006, a video - teleconference hearing was held

in Pensa cola and Tallahassee, Florida, pursuant to Sections

120.569 and 120.57(1), Florida Statutes. The case was

considered by Lisa Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Bruce A. Campbell, Esquire

Florida Engineers Mana gement

Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

For Respondents: A. G. Condon, Jr., Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street

Post Office Drawer 1271

Pensacola, Florida 32502

STATEMENT OF THE ISSUE

The issue presented is whether Respondents are guilty of

violating Section 471.033(1)(g), Flor ida Statutes, and if so,

what penalty should be imposed?

PRELIMINARY STATEMENT

On April 20, 2006, Petitioner filed an Administrative

Complaint alleging that Respondents Julian Irby, P.E., and

Irby Engineering and Construction, Inc., violated Section

471.03 3(1)(g), Florida Statutes. Respondents filed Answers

and Affirmative Defenses as well as an Election of Rights

requesting a hearing pursuant to Section 120.57(1), Florida

Statutes. On May 18, 2006, the matter was forwarded to the

Division of Administrati ve Hearings for the assignment of an

administrative law judge.

The case was originally scheduled for hearing July 14 - 15,

2006 before Judge Charles Adams. Upon the Joint Request for

Continuance filed by the parties, it was rescheduled for July

31, 2006. T he case was subsequently reassigned to the

undersigned prior to hearing.

At hearing, Petitioner presented one witness and

Petitioner's Exhibits 1 through 3 were received into evidence.

Petitioner was given until August 10, 2006 to file the

deposition of R oland Holt, P.E. Respondent Irby testified on

his own behalf and presented the testimony of Mark Spitznagel,

P.E., and Respondents' Exhibits numbered 2 - 5, 16 - 17, and 19 - 21

were admitted into evidence. The parties stipulated to

certain findings of fact th at are incorporated into the

findings below.

A hearing transcript was prepared and filed with the

Division August 8, 2006. The deposition of Roland Holt was

filed with the Division August 11, 2006 without objection.

The parties were granted unti l August 21, 2006, to file

proposed recommended orders. Both parties filed proposed

recommended orders that have been considered in the

preparation of the Recommended Order.

FINDINGS OF FACT

1. At all times material to the allegations in the

Administra tive Complaint, Julian Irby was a licensed

Professional Engineer with license number PE 43316 and Irby

Engineering & Construction, Inc., held Certificate of

Authorization #9511 issued by the Board of Professional

Engineers. Mr. Irby has been licensed in t he State of Florida

as a professional engineer since 1990 and spent 21 years in

the United States Navy Civil Engineer Corps. He is also a

licensed general contractor.

2. Respondent Irby was the engineer of record, with the

firm name on the title block of plans for a residential

construction project described as, "House Relocation,

Foundation Design, 1000 Blk La Paz St., Pensacola, FL" (the

relocation project).

3. On or about June 2, 2004, Irby signed and sealed page

one of one with a site plan and founda tion pier detail for

House Relocation at 1000 La Paz Street, and filed it with the

Building Inspections Department of Escambia County (Building

Department).

4. On or about June 7, 2004, Irby signed and sealed page

one of one with a site plan and foundatio n pier detail for

House Relocation at 1000 La Paz Street, and filed it with the

Building Department.

5. On or about June 25, 2004, Irby signed and sealed six

of six pages of plans (the June 25 plans) for House Relocation

at 1000 La Paz Street, and filed t hem with the Building

Department.

6. Permitting for the project was performed in a two -

step process, with a preliminary foundation plan submitted

before the house was moved from the old site in order to

obtain a moving permit and foundation permit. After those

permits were issued, Respondents received test results from a

geotechnical firm that caused some alteration in the design of

the footings to accommodate the water table at the new site.

The plans upon which the building permits were ultimately

issu ed and which were used by the construction crew in the

building process were the June 25 plans.

7. On or about February 1, 2005, Irby signed and sealed

seven of seven pages of plans for House Relocation at 1000 La

Paz Street, and filed them with the Build ing Department on

February 24, 2005.

8. The seven pages of plans for the House Relocation

signed and sealed February 1, 2005, and filed with the

Building Inspections Department of Escambia County on February

24, 2005, represent the relocation project as completed.

Changes made during construction and approved in the field are

reflected in this set of plans.

9. The Florida Building Code 2001, as amended 2003, is

applicable to this case.

10. The relocation project involved moving an existing

home from Pe rdido Bay to a location several hundred feet

further inland. The house was an elevated structure at the

original location and was elevated at the La Paz address.

Respondent Irby was not only the engineer of record but was

also the contractor for the proj ect.

11. Certain features of the construction and design of

the original structure were not known at the time the original

plans were submitted for the foundation. For example, there

was a façade that hid from view the I - beam, stringers and pipe

posts un der the floor of the home. These features could not

be seen until the façade was removed in preparation for the

move.

12. Relocation projects are subject to certain

exceptions under the Florida Building Code. Some design

specifications normally requir ed when building a house are not

required for a relocation project, because the existing

structure need not be redesigned or brought up to code as long

as it meets conditions specified in Florida Building Code

Section 101.4.2.3. There is no allegation tha t those

conditions were not met in this case.

The primary requirement for a relocation design is foundation

plans sealed by a professional engineer or architect, if

required by the Florida Building Code for residential

buildings or structures of the same occupancy class.

13. Respondents' plans filed with the Escambia County

Building Inspections Department included foundation plans.

14. Both witnesses testifying for the Petitioner stated

that they did not review or prepare any calculations related

to th e plans and there was no evidence presented that the

Building Department had required the calculations to be

submitted with the plans.

15. James Lane, who testified on behalf of the

Petitioner, acknowledged that there is nothing in the Florida

Building Code to prevent an engineer from using the dead

weight of the house on the piers and the friction it creates

as a method of construction. If the dead load of the house

and the friction transfer from the house to the top of the

piers is sufficient to addre ss the lateral wind requirements,

then straps (also referred to as connectors) would not be

necessary to meet the requirements of the Florida Building

Code.

16. The main wind force resisting system for the

relocation project was the embedment of the fou ndation piers

in the fiberglass reinforced slab and continuous footing in

the garage area. Page 6 of the June 25 plans specifies a

four - inch minimum monolithic concrete slab with fiberglass

reinforcement, using 3,000 PSI concrete, as well as number 4

reb ar throughout the footings. There is no requirement that

the exact location of rebar splicing be noted on the plans,

and the plans are not deficient for failing to provide that

information. Moreover, the Florida Building Code requires

that a minimum of 2 ,500 PSI concrete be used. Respondents'

design exceeded this requirement.

17. Respondent Irby performed calculations, using the

dead load weights in Florida Building Code Appendix A, that

showed that the dead load of the existing house sitting on

piers with the friction it created was more than sufficient to

withstand the required lateral wind load.

18. Mark Spitznagel, P.E., reviewed both the plans and

the calculations and visited the construction site. He opined

that the calculations showing wind loads could be supported

using dead load friction between the house and the piers were

correct, and that the Florida Building Code does not require

an engineer to explain that no connector, or strap, is

required under this circumstance. His testimony is c redited.

19. Despite the fact that no connectors were actually

required, page six of the June 25 plans included directions

for connectors that were used to provide additional support.

20. The Administrative Complaint alleges that the plans

do no t provide adequate guidance for transfer of horizontal

wind loads from the house to the supporting piers and posts or

how the supporting piers and posts are to resist imposed loads

from the house. The evidence presented at hearing did not

indicate what in formation the Petitioner believed would be

sufficient to meet the applicable standard of care. Moreover,

the evidence presented supports the conclusion that the metal

posts were never intended to transfer lateral wind loads, but

were to support vertical l oads. The metal posts were part of

the existing house and not subject to redesign under the

exemption afforded in Florida Building Code Section 101.4.2.3.

21. Shear walls were not considered in the calculations

performed by Irby. However, the June 25 plans included shear

walls around the garage area, which served to provide extra

support over and above what would be required by Irby's

calculations. The detail provided on page 6 of the June 25

plans provided a clear load path from the foundation throug h

the shear walls to the upper original structure.

22. The June 25 plans admittedly do not provide wall

thickness or metal yield strength for the pipe posts, nor weld

attachment, size or thickness for top and bottom plates for

the pipe posts. This inform ation is not provided because the

pipe posts were part of the original structure and there was

no need to redesign them or include them in the foundation

plans.

23. The slab beneath the structure was also shown on

sheets 1 - 3 and 6 of the June 25 plans. The slab

characteristics are shown in the monolithic footing detail.

24. The upper floor framing members, including the floor

joists and the stringers and the I - beam atop the pipe posts

were part of the original house design. The house was

elevated at it s original location, and the stringers, I - beam

and pipe posts were part of the original structure. These

components did not need to be shown on the plans because of

the exemption provided in Florida Building Code Section

101.4.2.3.

25. Respondents did not include main wind force

resisting loads for the structure because the Florida Building

Code does not require them to be shown for residential, as

opposed to commercial, projects.

26. Based on the evidence presented, only component and

cladding press ures are required to be shown on the plans, and

page 6 of the June 25 plans clearly provides this information.

In accordance with Florida Building Code Section 1606.1.7,

wind loads for components and cladding were provided showing

that the structure was d esigned to withstand winds up to

exposure category D, at 140 miles per hour.

27. The house was actually moved and put in place on the

foundation piers three days prior to Hurricane Ivan.

Hurricane Ivan was a major hurricane causing extensive damage

to the Pensacola area. According to the National Weather

Service's Tropical Cyclone Report for the storm, Perdido Key

was "essentially leveled." The house relocation project

sustained no structural damage in Hurricane Ivan.

CONCLUSIONS OF LAW

28. 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.

29. Section 471.038(3), Florida Statutes, authorizes

Petitioner to pr ovide administrative, investigative and

prosecutorial services to the Florida Board of Professional

Engineers. The Board is charged with regulating the practice

of engineering pursuant to Chapters 455 and 471, Florida

Statutes.

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

Professional Engineers to impose discipline for negligence in

the practice of engineering.

31. Florida Administrative Code Rule 61G15 - 19.001(4),

reads as follows:

(4) A professional engineer shall not be

negligent in the prac tice 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 standa rds 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 s et forth in the Responsibility

Rules as adopted by the Board of

Professional Engineers shall be considered

as non - compliance with the this section

unless the deviation or departures are

justified by the specific circumstances of

the project in question an d the sound

professional judgment of the professional

engineer.

32. Because Section 471.033 is a penal statute,

Petitioner must prove the allegations in the Administrative

Complaint by clear and convincing evidence. Department of

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

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

1987). The "clear and convincing standard" is well settled in

the law:

[T]he evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony 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 a weight that it produces

in the mind of the trier of fact a firm

belief or co nviction, without hesitancy, as

to the truth of the allegations sought to

be established.

In re: Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting

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

Further, in order to demonstrate that a lice nse has violated a

particular standard of care, the agency must submit evidence

of the acceptable standard of professional conduct as well as

the deviation from that standard. Purvis v. Department of

Professional Regulation, Board of Veterinary Medicine , 461 So.

2d 134 (Fla. 1st DCA 1984).

33. The Administrative Complaint charges Respondents

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

follows:

5. In signing and sealing the plans for

the La Paz Street house location project,

Respondents fa iled to have due regard for

acceptable standards of engineering

principles in one or more of the following

ways:

a. The plans do not provide adequate,

clear or complete guidance for transfer of

horizontal wind loads from the house to the

supporting pier s and posts.

b. The plans do not provide adequate,

clear or complete structural guidance on

how the onsite constructed piers and posts

are to resist imposed loads from the house.

c. The plans do not provide wall

thickness or metal yield strength for t he

pipe posts, nor weld attachment, size of

thickness for top and bottom plates for the

pipe posts.

d. The plans do not provide adequate

detail for how the upper floor framing

members were to be attached to transmit

lateral wind loads to the concrete

fou ndation piers.

e. The plans do not describe concrete

strength or continuity of rebars for the

concrete foundation piers.

f. The plans do not show beams or

stringers to tie the tops of the concrete

foundation piers into a structural system

to receive loads at specific bearing points

in the framed floor system.

g. The plans do not adequately

describe the 14 - inch I - beam atop the pipe

posts to provide weight of the beam, its

connections to the posts or its connections

to the framed floor structural memb ers.

6. Based on the foregoing, Respondents

violated Section 471.033(1)(g), Florida

Statutes.

34. Petitioner has not presented clear and convincing

evidence to support the allegations in the Administrative

Complaint. Several of the allegations could have been

resolved by reviewing the calculations supporting the plans.

Some are clearly refuted by the plans themselves. The

remaining allegations deal with issues related to the original

structure that did not have to be included in the foundation

plans submitted to the Building Department for this relocation

project.

35. With respect to subparagraphs 5(a), (b), and (d),

the Petitioner did not provide clear and convincing evidence

of what, in its view, would constitute "adequate, clear or

complete gui dance" or "adequate detail" such that failure to

provide such guidance or detail amounts to a violation of the

standard of due care. See Purvis . The more convincing

evidence supports the conclusion that appropriate guidance or

detail has been provided. Subparagraphs 5(c), (f) and (g)

allege facts related to components of the original structure,

and Petitioner has not presented clear and convincing evidence

that the Florida Building Code, or any other measure by which

an engineer's performance is measured , requires the items

alleged to be included in the foundation plans for a

relocation project. Finally, the allegations of subparagraph

5(e) are clearly rebutted by the information provided on page

6 of the June 25 plans.

36. The undersigned has carefu lly considered the

testimony of James Lane, Roland Holt and Mark Spitznagel. On

the whole, Mr. Spitznagel's testimony, in conjunction with the

explanations given by Mr. Irby, is simply more credible. Mr.

Spitznagel reviewed the plans and the calculations , and made a

site inspection to confirm information relayed on the plans.

He also has experience with relocation projects. Mr. Lane

visited the site briefly but did not perform a detailed

inspection of the property. He reviewed the foundation plans,

but neither prepared nor reviewed any calculations related to

the project. Similarly, Mr. Holt did not visit the site, did

not prepare or review any calculations and has no experience

preparing plans for a house relocation. He has never before

reviewed plan s for a relocation project under the Florida

Building Code edition applicable to this case, and the house

relocation projects he has reviewed did not involve relocation

of an elevated structure. Neither expert for the Petitioner

provided explanations for their opinions that corresponded to

provisions in the Florida Building Code.

37. Finally, the definition of negligence in Florida

Administrative Code Rule 61G15 - 19.001(4) provides in part that

"professional engineers shall approve and seal only those

d ocuments that conform to acceptable engineering standards and

safeguard the life, health, property and welfare of the

public." In this case, the relocated house was subjected to a

grueling display of force almost immediately after it was

elevated to the p iers constructed pursuant to Irby's design.

The house withstood precisely the type of hazard for which the

Administrative Complaint alleges there was an inadequate

design. In an area of nearly wholesale destruction, the

relocation project suffered no str uctural damage. The

evidence presented supports the conclusion that no violation

of Section 471.033(1)(g) was demonstrated with respect to the

preparation of the designs in this case.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That the Administrative Complaint against Respondents be

dismissed.

DONE AND ENTERED this 29th day of August, 2006, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administr ative 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 Adminis trative Hearings

this 29th day of August, 2006.

COPIES FURNISHED :

Bruce Campbell, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

A. G. Condon, Jr., Esquire

Emmanuel, Shepp ard & Condon

30 South Spring Street

Post Office Drawer 1271

Pensacola, Florida 32596

Paul J. Martin, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

2507 Calloway Road, Suite 200

Tallahassee , F lorida 32303 - 5267

Doug Sunshine, Esquire

Florida Engineers Management Corporation

2507 Callaway Road

Tallahassee, Florida 32303 - 5267

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 N orth 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 recomme nded order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.