07-002862PL Florida Engineers Management Corporation vs. Joseph Potts, P.E. Status: Closed Recommended Order on Wednesday, September 26, 2007.

Summary: Recommend a reprimand, probation, and fine for professional engineer who signed and sealed deficient engineering documents and whose subsequent revisions were also deficient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT ) )

CORPORATION, )

)

Petitioner, )

) Case No. 07-2862PL

vs. )

)

JOSEPH POTTS, P.E., )

)

Respondent. )

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on August 13, 2007, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: John J. Rimes, III, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

For Respondent: Joseph Potts, P.E., pro se

4440 Northeast 13th Avenue

Fort Lauderdale, Florida 33334

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the

allegations in the Administrative Complaint filed against him,

and, if so, what disciplinary action should be taken against

him, if any.

PRELIMINARY STATEMENT

On May 23, 2007, Petitioner Florida Engineers Management

Corporation issued an Administrative Complaint against

Respondent Joseph Potts, P.E., alleging that he had violated a

statute and several rules governing his conduct as a licensed

professional engineer in the State of Florida. Respondent

requested an administrative hearing regarding the allegations in

that Administrative Complaint, and this cause was transferred to

the Division of Administrative Hearings to conduct the

evidentiary proceeding.

Petitioner Florida Engineers Management Corporation

presented the testimony of Joseph M. Berryman, P.E., and, by way

of deposition, Rebecca Caldwell. Respondent Joseph Potts, P.E.,

testified on his own behalf. Additionally, Petitioner's

Exhibits numbered 1-11 and Respondent's Exhibit numbered 1 were

admitted in evidence.

During the final hearing Petitioner voluntarily dismissed

the allegations contained in Paragraphs numbered 7E and 7H of

the Administrative Complaint filed in this cause.

Only Petitioner filed a Proposed Recommended Order after

the conclusion of the final hearing. That document has been

considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent Joseph Potts

has been licensed as a professional engineer in the State of

Florida. He has been a professional engineer for 40 years.

2. On September 23, 2005, and December 13, 2005,

Respondent sealed, signed, and dated engineering documents for

the construction of an aluminum screened pool enclosure to

replace one which had been damaged in Boca Raton, Florida (the

Hacker Project). The documents consisted of a hand-drawn design

of the enclosure, a handwritten sheet of specifications sealed

on September 23, 2005; and three handwritten pages of

engineering calculations sealed on December 13, 2005.

3. Structural engineering documents intended to be

submitted for the issuance of building permits, such as those

prepared for the Hacker Project, normally are composed of

several types of engineering work. The engineer creates (1)

calculations, which represent the analysis used by the engineer

in making the design decisions for the structure; (2) the design

of the structure itself, which encompasses a visual

representation of the proposed structure with notations

conveying design information in varying levels of specificity

depending on the type of project, and (3) specifications, which

delineate the methods and prescribe the materials by which the

design is to be completed by the builder/contractor. The

calculations must justify the engineer's design and

specification decisions and must be consistent with the

information conveyed in those documents.

4. In the pool enclosure industry it is accepted practice

for the actual design of the enclosure to be rendered in a

fairly schematic and simplified manner. However, because of

this practice, the specifications for the pool enclosure are

vitally important and must be clear and consistent in the

information imparted to the builder/contractor. It is through

the specifications that the intent of the design engineer is

conveyed to the builder, and the amount of discretion left to

the builder is permitted or circumscribed.

5. Indeed, since in the pool enclosure industry the

specifications are generally intended to negate the necessity of

an engineer in the design, the specifications must be

sufficiently complete and correct so that the builder is able to

utilize the information provided in the specifications with the

assurance that all reasonable construction decisions will be

structurally adequate. Because of the uses to which they are

put in the pool enclosure industry, the specifications are

"product evaluation documents."

6. Some of the engineering documents for the Hacker

Project were submitted to the Palm Beach County Building

Department to obtain building permit approval on October 4,

2005. The calculations were submitted in December.

7. The documents for the Hacker Project contained several

deficiencies when they were reviewed by employees of the

Building Department. These included, among other things: lack

of bracing, inadequate depiction of connection, and

inappropriate stress increases.

8. The Building Department referred the Hacker Project

documents to the Aluminum Association of Florida for review.

The Association prepared a report which was forwarded to the

Building Department. The report confirmed the Building

Department's concerns with Respondent's engineering work on the

Hacker Project. As a result, the Building Department rejected

the permit application for the Hacker Project and filed a

complaint against Respondent with the Board of Professional

Engineers.

9. Upon receipt of the Building Department's complaint,

Petitioner had the Hacker Project engineering work reviewed by a

professional engineer retained for that purpose,

Joseph Berryman, P.E. That expert has extensive experience in

structural engineering design in general and, in particular, the

review of aluminum pool enclosure design documents for

compliance with the Florida Building Code and with other

engineering practice requirements and standards.

10. While Berryman was reviewing the documents that

Respondent had produced for the Hacker Project, Respondent

submitted a revised set of sealed and signed design drawings,

specifications, and calculations to Berryman in February 2006

but not to the Palm Beach County Building Department. The

calculations provided with these new documents were also

reviewed by Berryman with respect to the issues raised in his

review of the 2005 Hacker Project documents.

11. There were numerous errors and deficiencies in the

design and specifications documents prepared by Respondent and

filed with the Palm Beach County Building Department. The

details for the lap beam connections in Respondent's

specification document are unclear. The fasteners for the

connections are not adequately indicated as to whether they are

to be placed on both sides of the beams or are simply the total

number of fasteners without directions for placement. As a

result, following the specification literally could result in an

interpretation by the builder of the screen enclosure that would

cause overstressing in a structural member.

12. The details for Respondent's mansard connection

specifications are also deficient since Respondent gave a choice

between a one-foot plate and a one-foot-four plate but did not

indicate the criteria to be used by the builder in choosing

which of the listed plates to use for the job. That failure is

a material deficiency since the longer plate produces less

stress in the fastener groups, and a builder needs direction as

to which plate to use. Further, the detail does not show the H

distance (the distance from the outermost fasteners to the edge

of the plate material), which should be shown on the documents.

13. Based upon the alloys noted on the specification

drawing, the bearing stress on the bolt holes on the largest

plate exceeds the allowable stress. Additionally, the beam and

column schedule (setting out the maximum lengths and heights

which can be achieved with the different sections at given

spacing) in the specification drawing allows a builder to select

combinations of beams and columns that would be overstressed by

factors of from 15 to 90 percent, an improper result. Since

builders have a financial incentive to utilize the least

expensive size and thickness of structural elements permitted,

it is quite possible that the overstressed combinations would be

chosen by a builder.

14. The specification details addressing steel

reinforcement and concrete strength are also deficient in that

the existing foundation's concrete compressive strength is not

specified. Absent that detail, the proper cover of steel

reinforcing as prescribed by the concrete code is left to the

choice of the contractor. Moreover, since the foundation for

the Hacker Project would have been placed on existing concrete,

unless the strength of the concrete was known, or unless testing

was required, or unless the design value was placed on the

documents showing that the design was based upon a certain

strength with a requirement that the contractor verify the

information, it was not possible to know the capacity of the

designated fastener.

15. The specification details for typical footings and

bracing are deficient. Respondent did not provide sufficient

details indicating how the ends of the braces are connected to

the frame or the dimensions or configuration of the plates. The

details of how the fasteners are attached to the frame of the

structure are not provided, and since the screen specification

should be the document the builder relies on to tell him how to

put together the elements that are specified in the site-

specific drawing, the missing details are material errors.

16. The specification details are deficient in the

limitations on the rise and run of the mansards. Since

allowable stresses are based on unbraced length, it is important

to provide limitations on the length of mansard members.

However, the calculations provided with the drawings, with only

one or two exceptions, are based upon short members wherein no

reduction for unbraced length is taken. Because there is no

indication as to what the maximum unbraced lengths are in the

specification document, a contractor could run members as long

as desired, which means, potentially, using a member that has

less allowable stress than the design contemplated.

17. Additional errors and omissions existed in the

calculations Respondent produced for the Hacker Project. The

calculations must be consistent with the specifications in order

for the information given to the user in the specifications to

reflect the engineer's design decisions. First, the

calculations were based on a stronger aluminum alloy than was

specified in the screen specifications. If a weaker alloy were

used, as allowed by the specifications, it would be likely to be

overstressed.

18. Next, the calculation of the distribution of the

loading to the individual fasteners and the fastener group at

the mansard knee connection is not in accordance with accepted

elastic bolt group theory. As a result, the fasteners are not

designed for the maximum load that will be placed upon them, and

the bearing stresses on the holes in the metal from the

fasteners exceed allowable stresses.

19. In addition, on the long-span mansard on Respondent's

design drawing shown as 37 feet, 4 inches, the length of the bay

spaces is inaccurately calculated. With a mansard beam of this

type that is uniformly loaded, as prescribed by the code, the

torsional force (twisting) is greater at the center of the beam.

Respondent calculated the bays based upon 84 inch spacing,

whereas the actual spacing in the largest bay is 108 inches,

which means an increased torsion load on that bay which was not

calculated by Respondent.

20. Moreover, the fasteners do not all receive the same

load. The fasteners on the outside of the group, the ones with

the farthest distance from the centroid (the center of gravity

of the group), receive the largest portion of the torsional

load. In Respondent's calculation, the loading to all the

fasteners is averaged, i.e. , each fastener gets the same

torsional load, which does not comply with accepted engineering

theory. The effect of Respondent's calculation decision is that

the fasteners are not designed for the maximum load they will

receive.

21. In the February 2006 revised documents which

Respondent likely created in an attempt to stave off this

prosecution and which he provided to Berryman but not to the

Palm Beach County Building Department, many of the same errors

and omissions appeared as appeared in the documents filed with

the County. Additional errors and inconsistencies with the

Hacker Project design are found in the February 2006

calculations.

22. Those calculations indicate an allowable tension pull-

out for a tapcon anchor at approximately 1,800 pounds per

connector. This pull-out value is four to six times as much as

is allowed by the product evaluation of those fasteners. Thus,

since the value used by Respondent is erroneous, it is not

possible to know what the allowable design capacity of the

connection is.

23. In addition, the calculations for the K brace

indicated a required bracing member that had wall thickness

almost double what the original specification had required.

Therefore, the February 2006 calculations indicated that

Respondent had concurred that the Hacker Project specification

was not adequate as far as the size of the brace.

24. While the February 2006 documents were useful in

confirming Respondent's design analysis and the errors and

omissions contained therein, the documents filed for public

record with the Palm Beach County Building Department stand on

their own and must meet acceptable engineering standards.

Similarly, the revised documents Respondent provided to

Petitioner in July 2007, shortly before the final hearing in

this cause, are irrelevant to the determination of whether the

documents filed with Palm Beach County in 2005 and the documents

provided to Petitioner in February 2006 contained errors and

deficiencies.

25. Respondent's 2005 calculations submitted to Palm Beach

County call for aluminum alloy 6061-T6 in eleven places on the

calculation sheets and aluminum alloy 6063-T6 once on the

calculation sheets and once in the notes on the beam and column

schedule. Alloy 6063-T6 would not be adequate for good

engineering standards. Although Respondent testified that this

was a typographical error, that explanation for the hand-written

entries is not convincing in view of the numerous other

deficiencies in the Hacker Project documents.

26. Respondent agrees that the Hacker Project documents

are product evaluation documents. He also admits that he did

not include on those documents the required information

regarding the suitability of the use of the drawings by a

contractor as opposed to a licensed architect or engineer.

27. Respondent has previously been disciplined twice for

providing substandard engineering services and twice for failing

to comply with the final orders entered in those cases involving

substandard services.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), Fla. Stat.

29. Petitioner seeks to take disciplinary action against

Respondent in this proceeding. The burden of proof, therefore,

is on the Petitioner, and the Petitioner must prove the

allegations in its Administrative Complaint by clear and

convincing evidence. Dept. of Banking & Finance, Division of

Securities & Investor Protection v. Osborne Stern & Co. , 670 So.

2d 932 (Fla. 1996). Petitioner has met its burden.

30. The Administrative Complaint filed in this cause

contains two counts. Count One alleges that Respondent has

violated Section 471.033(1)(g), Florida Statutes, and Florida

Administrative Code Rule 61G15-19.001(4) by engaging in

negligence in the practice of engineering by sealing, signing,

and dating materially-deficient engineering documents that were

issued and filed of public record. Section 471.033(1)(g)

authorizes the Board of Professional Engineers to take

disciplinary action against a licensee who is negligent in the

practice of engineering.

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

defines negligence as failing to utilize due care or failing to

have due regard for acceptable standards of engineering

principles. That Rule further provides that professional

engineers shall only approve and seal documents conforming to

acceptable engineering standards. Petitioner has proven that

Respondent committed negligence as defined by that Rule and,

therefore, has violated Section 471.033(1)(g), Florida Statutes,

as alleged in Count One of the Administrative Complaint.

32. Count Two alleges that Respondent was negligent in the

practice of engineering in violation of that same statutory

section and that same Rule as to the February 2006 revised

engineering documents which he sealed, signed, and provided to

Berryman but did not file with Palm Beach County. Petitioner

has proven as to those documents that Respondent committed

negligence as defined by Florida Administrative Code Rule 61G15-

19.001(4) and, therefore, has violated Section 471.033(1)(g),

Florida Statutes, as alleged in Count Two of the Administrative

Complaint.

33. In its Proposed Recommended Order, Petitioner requests

that Respondent be ordered to pay the costs related to the

investigation and prosecution of this case, other than costs

associated with an attorney's time, as provided for in Section

455.227(3), Florida Statutes. Since no evidence was presented

as to what those costs might be in order to determine,

factually, the reasonable nature of the costs sought by

Petitioner, no costs can be awarded in this proceeding.

34. In its Proposed Recommended Order, Petitioner

recommends, with no explanation for its recommendation, that

Respondent be reprimanded, placed on probation for a period of

two years with extensive conditions attendant thereto, and fined

$8,000. The recommended conditions appear to have been copied

from a settlement stipulation entered into by some unidentified

person. The conditions may or may not be reasonable simply

because they may or may not have been agreed to by some other

person. No evidence was offered to suggest that they would be

reasonable or applicable in this case.

35. As to the amount of the recommended fine, Section

471.033(3), Florida Statutes, provides for a maximum fine of

$5,000 per count or separate offense. In this case, the

Administrative Complaint contains two counts, the first of which

concerns the engineering documents filed with the Palm Beach

County Building Department. The second count involves

Respondent's subsequent attempt to correct those deficient

documents by sending a revised set to Petitioner's expert who

was reviewing the first set. Although Respondent has been found

guilty of two counts, they do not involve separate offenses but

two attempts to prepare proper engineering documents involving

the same screened pool enclosure.

36. It is appropriate, therefore, that Respondent be fined

for one offense. In view of Respondent's disciplinary history,

it is further appropriate that he be assessed the maximum fine

of $5,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding

Respondent guilty of the allegations in the Administrative

Complaint filed in this cause, reprimanding Respondent, placing

Respondent's license on probation for two years with appropriate

conditions for this case, and imposing an administrative fine

against Respondent in the amount of $5,000.

DONE AND ENTERED this 26th day of September, 2007, in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of September, 2007.

COPIES FURNISHED :

John J. Rimes, III, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Joseph Potts, P.E.

4440 Northeast 13th Avenue

Fort Lauderdale, Florida 33334

Paul J. Martin, Executive Director

Board of Professional Engineers

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 32303-5267

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North 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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.