07-000377 Florida Engineers Management Corporation vs. Fresnel E. Hernandez And G.F. Consulting Engineers, Inc. Status: Closed Recommended Order on Tuesday, June 12, 2007.

Summary: Petitioner failed to prove by clear and convincing evidence that the Respondents were negligent in the practice of engineering.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 07 - 0377

)

FRESNEL E. HERNANDEZ AND G. F. )

CONSULTING ENGINEERS, INC., )

)

Respondent s . )

_________________________________)

RECOMMENDED ORDE R

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

on March 29, 2007, by video teleconference, with the Petitioner

appearing in Tallahassee, Florida, and the Respondent appearing

in Miami, Florida, before Patricia M. Hart, a duly - designated

Admi nistrative Law Judge of the Division of Administrative

Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: John J. Rimes, III, Esquire

Florida Engineers Management Corporation

2507 C allaway Road, Suite 200

Tallahassee, Florida 32303

For Respondent: Samuel B. Reiner, II, Esquire

Reiner & Reiner, P.A.

9100 South Dadeland Boulevard, Suite 1002

Miami, Florida 33156 - 7866

STATEMENT OF THE ISSUE

Whether the Respondent s committed the violation s alleged in

the Administrative Complaint dated April 18, 2006, and, if so,

the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated April 18, 2006, the

Florida Engineers Management Corporation ("FEMC") charged

Fresnel E. Hernandez, P.E., and G.F. Consulting Engineers, Inc., 1

with a single count of negligent practice of engineering, in

violation of Section 471.033(1)(g) , Florida Statutes (2005), 2 and

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

was based on allegations in paragraph 5 of the Administrative

Complaint that Mr. Hernandez had signed and sealed plans and

calculations

that failed to conform to acceptable

standards of engineering principles in one

or more of the following ways:

a. The plans and calculations do not

consider the load path for concentrated wind

loads into the roof deck at tie columns;

b. New footing extensions are connected to

t he ends of existing wall footings without

consideration for the bending moments

required to be developed between the end of

the existing wall footings and the new

extensions.

Mr. Hernandez timely requested a formal administrative hearing,

and FEMC transmi tted the matter to the Division of

Administrative Hearings for assignment of an Administrative Law

Judge. Pursuant to notice, the final hearing was held on

March 29, 2007.

At the hearing, FEMC dismissed the allegation in

paragraph 5a. of the Administrativ e Complaint and proceeded

solely on the allegation in paragraph 5b. FEMC offered the

transcript of the deposition of James E. Towbridge, P.E., its

expert witness, in lieu of his live testimony, and the

deposition transcript was received into evidence as P etitioner's

Exhibit 10. Petitioner's Exhibits 1 through 9 were also offered

and received into evidence. Mr. Hernandez testified in his own

behalf and offered the testimony of Evidell Gauthier, P.E., and

Samuel De Leon, P.E.; Respondent's Exhibits 1 throu gh 5 were

offered and received into evidence. Respondent's Exhibit 4 is

the transcript of the deposition of John R. Abbott, and

Respondent's Exhibit 5 is the transcript of the deposition of

Dariusz Reczek, P.E. The parties also submitted a Joint Pre -

Hear ing Stipu lation which included several stipulations of fact

that , to the extent that they are material to resolution of the

issue presented herein, are incorporated in the Findings of Fact

below.

The one - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on April 5, 2007, and

the parties timely filed proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and docume ntary evidence presented at the

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

following findings of fact are made:

1. FEMC is the entity responsible for providing

administrative, investigative, and prosecutorial services to the

Florida Bo ard of Professional Engineers ("Board").

§ 471.038(4), Fla. Stat. The Board is responsible for

regulating the practice of engineering pursuant to Chapters 455

and 471, Florida Statutes.

2 . At all times material to this proceeding, Mr. Hernandez

has been a licensed professional engineer in the State of

Florida, having been issued l icense number P.E. 46618.

G.F. Consulting Engineers, Inc., is a licensed engineering firm

holding Certificate of Authorization # 9129.

3 . In late 2004, architect Carlos Lozano was commissioned

to design plans for the renovation of a structure that was to

become the Moon Thai Restaurant in Coral Gables, Florida.

4 . G.F. Consulting Engineers, Inc., was retained to

provide structural engineering services for the Moon Thai

Restaur ant Renovation Project ("Project").

5 . Mr. Hernandez was the professional engineer in charge

of producing the plans and calculations for the structural

portions of the Project .

6 . On February 8, 2005, Mr. Hernandez sealed, signed, and

dated a set of stru ctural plans , which were submitted to the

Coral Gables Building Department.

7 . Dariusz Reczek, P.E., a structural plans examiner

employed by the Coral Gables Building Department, reviewed the

plans and issued a set of Structural Review Comments dated

Apri l 12, 2005. Among other comments, Mr. Reczek directed

Mr. Hernandez to "[r]eview 50% rule per FBC [Florida Building

Code] (3401.8)" and to provide a set of structural calculations. 3

8 . Mr. Hernandez received Mr. Reczek's comments in

April 2005, and, o n o r about April 26, 2005, Mr. Hernandez

sealed, signed, an d dated structural calculations and revised

structural plans for the Project .

9 . Mr. Reczek prepared another set of Structural Review

Comments dated May 23, 2005, which included the comments made on

April 12, 2005, and added three comments related to the new

structural drawings submitted April 26, 2005.

10 . On June 1, 2005, Mr. Hernandez sealed, signed, and

dated additional structural plans and, on June 2, 2005,

Mr. Hernandez sealed, signed, and date d additional structural

calculations.

11 . The comment that Mr. Hernandez "review the 50% rule"

was ambiguous with regard to Mr. Reczek's opinion as to whether

the rule did or did not apply. Mr. Hernandez was, however,

advised that Mr. Reczek was of the o pinion that the 50 percent

rule did apply to the Project. Mr. Hernandez believed that the

50 percent rule did not apply. 4

12 . Although Mr. Hernandez disagreed with Mr. Reczek's

assessment that the 50 percent rule applied to the Project, he

nonetheless mo dified the structural calculations and plans to

address Mr. Reczek's primary concern, the danger that the

building would overturn as a result of being subject to high

velocity winds. In the June 1 and 2 , 2005, plans and

calculations, Mr. Hernandez address ed Mr. Reczek's concern that

the building might overturn by designing 8' x 8' concrete dead

weight anchors that were to be attached to the existing footings

on the building. The dead weight anchors were designed to

prevent the building from overturning by adding additional

weight to the building to counteract the overturning effect.

Mr. Hernandez's intent in the June 1 and 2, 2005, structural

plans and calculation was not to redesign the footings of the

building. 5

13 . Mr. Hernandez's design of the dead w eight anchors was

appropriate to address the concern of the Coral Gables Building

Department plans examiners regarding the lateral stability of

the building and the possibility of overturning, even though he

disagreed with the plan examiner's concern , and Mr. Hernandez

use d due care and had due regard for acceptable sta ndards of

engineering principles in formulating the design.

CONCLUSIONS OF LAW

14 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1) ,

Florida Statutes (2006 ).

15 . In its Administrative Complaint, FEMC seeks to impose

penalties against Mr. Hernandez that include suspension or

revocation of his profession al engineer's licens e. The

Department, therefore, has the burden of proving by clear and

convincing evidence that Mr. Hernandez committed the violations

alleged in the Administrative Complaint. Department of Banking

and Finance, Division of Securities and Investor Protectio n v.

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

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

16 . In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the court defined clear a nd convincing evidence 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 witne sses 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 conviction, without

hesitancy, as to the truth of the

allegations sought to be established .

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

17 . Judge Sharp, in her dissenting opinion in Walker v.

Florida Department of Business and Professional Regulation , 705

So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting),

reviewed pronouncements on clear and convincing evidence and

observed:

Clear and convincing evidence requires more

proof than preponderance of evidence, but

less than beyond a reasonable doubt. In re

Inquiry Concerning a Judge re Graziano ,

696 So. 2d 744 (Fla. 1997). It is an

intermediate level of proof that entails

both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L. Ed. 2d 672 (1996). The sum total of the

evidence must be sufficient to convince the

trier of fact without any hesitancy. Id.

It must produce in the mind of the fact

finder a firm belief or conviction as to the

truth of the allegations sought to be

established. Inquiry Concerning Davie , 645

So. 2d 398, 404 (Fla. 1994).

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

the act of engaging in negligence in the practice of engineering

is a basis on which disciplinary action may be taken. Florida

Administrative Code Rule 61G15 - 1 9.001(4) provides in pertinent

part :

A professional engineer shal l 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 ca re in performing

in an engineering capacity or failing to

have due regard for acceptable standards of

engineering principles. . . .

19 . Based on the findings of fact herein, FEMC has failed

to meet its burden of proving the factual allegations of

miscond uct in paragraph 5b. of the Administrative Complaint, and

it has, therefore, failed to prove by clear and convincing

evidence that Mr. Hernandez committed negligence in the practice

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

Statutes , a nd Florida Administrative Code Rule 61G15 - 19.001(4) . 6

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Board of Engineers enter

a final order dismissing the Administrative Complaint against

Fresnel E. Hernandez, P.E., and G.F. Consulting Engineers, Inc.

DONE AND ENTERED this 12th day of June , 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

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

Fi led with the Clerk of the

Division of Administrative Hearings

this 12th day of June , 2007.

ENDNOTES

1 / Becaus e G.F. Consulting Engineers, Inc., can only operate

through a qualifying professional engineer, the Respondents are

referred to herein collectively as "Mr. Hernandez."

2 / All references to the Florida Statutes herein are to the 2005

edition unless otherw ise noted.

3 / The "50 percent rule" requires that, if the cost of

renovations exceeds 50 percent of the replacement cost of the

building, the entire structure must be altered to conform to the

requirements of the current building code.

4 / Although a gr eat deal of testimony during the hearing was

addressed to the issue of whether the 50 percent rule applied to

the Project, this issue is not material to a determination of

wh ether Mr. Hernandez committed negligence in the practice of

engineering, as charge d in the Administrative Complaint.

5 / In formulating his opinion that Mr. Hernandez's calculations

and plans failed to comply with accepted engineering standards,

FEMC's expert, James E. Towbridge, P.E., assumed that

Mr. Hernandez's "design assumed that the footing was extended in

length and made integral or continuous to act as one long rigid

member." Working from his assumption regarding Mr. Hernandez's

design intent, Mr. Towbridge concluded that the structural

calculations were deficient in that "the detail for connecting

the added footings did not correspond with the assumptions used

in calculating the resistance to the overturning that was

provided by those additional footings." Mr. Towbridge noted

that Mr. Hernandez's calculations "for the detail o f the

connection of the new footing to the existing shows calculations

for shear transfer only." Mr. Towbridge's erroneous assumptions

provided the basis for his opinion that Mr. Hernandez's design

failed to include "consideration for the bending moments

required to be developed between the end of the existing wall

footing and the new extension." Because Mr. Towbridge's

assumptions about Mr. Hernandez's design intent were not

supported by the record, his opinion must be discounted.

6 / Mr. Hernandez's ex pert witness testified that Mr. Hernandez's

calculations of the moment arm of force for the dead - weight -

anchor design contained a mistake that resulted in the anchors

being smaller than required under Mr. Hernandez's design

approach. It does not appear fr om the record, however, that

this miscalculation relates to the factual allegation in

paragraph 5b. of the Administrative Complaint upon which the

charges against Mr. Hernandez are based.

COPIES FURNISHED:

Samuel B. Reiner, II, Esquire

Reiner & Reiner, P.A

9100 South Dadeland Bou levard, Suite 1002

Miami, Florida 33156 - 7866

John J. Rimes, III, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

Paul J. Martin, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

Patrick Creehan, Esquire

Chief Prosecuting Attorney

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

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 exception s 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.