08-004422PL Florida Engineers Management Corporation vs. Garry Vermaas, P.E. Status: Closed Recommended Order on Wednesday, March 4, 2009.

Summary: Recommend that Petitioner`s Complaint be dismissed. Negligence was not proven by "clear and convincing" evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 08-4422PL

)

GARRY VERMAAS, P.E., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on December 16, 2008, in Orlando, Florida.

APPEARANCES

For Petitioner: John Jefferson Rimes, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

For Respondent: Garry Vermaas, Ph.D., P.E., pro se

Ground Floor Engineering

10125 West Colonial Boulevard, Suite 212

Ocoee, Florida 34761

STATEMENT OF THE ISSUE

Whether Respondent, Garry Vermaas, Ph.D., P.E., committed

the acts alleged in the Administrative Complaint (as submitted

in the parties' joint pre-hearing submission).

PRELIMINARY STATEMENT

On March 20, 2008, Petitioner, Florida Engineers Management

Corporation, filed an Administrative Complaint alleging that

Respondent, Garry Vermaas, Ph.D., P.E., had violated Florida law

and had been negligent in the practice of engineering. In

essence, the Administrative Complaint alleged that Respondent

was the engineer of record on a project and had sealed, signed,

and dated engineering documents that were "deficient and failed

to comply with acceptable standards of engineering principles."

Therefore, Respondent was negligent in the practice of

engineering. The specific deficiencies were:

A. The masonry wall on Gridline A at the first

level is not adequately designed in that it is

overstressed when compared to the Florida Building

Code (the Code) specified wind loads.

B. The block parapet walls at Elevation and

are, also, not adequately designed insofar as they

are overstressed when compared to the Florida Building

Code specified wind loads.

C. Wall Sections A and B on Sheet 1.10 show

tapered balcony slabs with a one-inch step. The wall

sections are inconsistent with the Typical Cantilever

Balcony Detail on Sheet S2.01 and reduce the cover on

the tendon to less than one inch required by the

Florida Building Code.

D. The placement of reinforcing bars in the

bottom of the cantilevered balcony slabs on Sheets

S2.02, S2.04, and S2.06 cannot be reasonably

determined from the information on these sheets.

E. Sheet S2.10 shows that the stair adjacent to

the elevator must rise from the fourth floor at

Elevation to the level of the pool deck at

Elevation . This is a rise of 14 feet and

contrasts with the stair at Gridline A, which rises

from the fourth floor and terminates at the fifth

floor at Elevation . As a result, the stair

adjacent to the elevator requires an additional stair

run and a landing neither of which have been addressed

in Respondent's design documents.

On April 14, 2008, Respondent requested an administrative

hearing. Petitioner forwarded the case to the Division of

Administrative Hearings on September 9, 2008. On September 10,

2008, an Initial Order was sent to both parties. Based on the

parties' response to the Initial Order, on October 6, 2008, the

case was scheduled for final hearing in Orlando, Florida, on

November 19, 2008.

On October 30, 2008, Respondent's Motion for Continuance

was granted; the case was rescheduled for December 16, 2008.

The case was presented as rescheduled.

Petitioner presented two witnesses: James Owen Power,

P.E., and Joseph M. Berryman, P.E., whose deposition testimony

of November 24, 2008, was accepted in lieu of live testimony.

Both Messrs. Power and Berryman were accepted as expert

witnesses in structural engineering. Petitioner entered seven

exhibits into evidence that were marked Petitioner's Exhibits A

through F and Change of Petitioner's Exhibit F. Petitioner's

Exhibits A through E are also admitted and marked as they are in

the Berryman deposition. Respondent testified on his own behalf

and presented two witnesses: Adam Ginsburg, P.E., and Yousheng

"Jeff" Cheng, Ph.D. Respondent, Mr. Ginsburg and Dr. Cheng were

accepted as expert witnesses in structural engineering.

The parties agreed to submit proposed recommended orders

30 days from the filing of the transcript. The Transcript of

Proceedings was filed with the Clerk of the Division of

Administrative Hearings on January 6, 2009. Both parties timely

filed Proposed Recommended Orders.

All statutory references are to Florida Statutes (2006),

unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Fact are made:

1. At all times material to the allegations in the

Administrative Complaint, Respondent was a licensed professional

engineer with License No. PE 61163.

2. Respondent was the structural engineer of record for a

13-unit apartment building complex located at 214 Salamanca

Avenue, Coral Gables, Florida. As such, on or about January 24,

2007, Respondent signed and sealed the last iteration of

structural engineering documents for the project which were

filed with the City of Coral Gables, Florida, as part of the

application for a building permit.

3. Respondent was the structural engineer of record for

the above-referenced project as that term is used in Florida

Administrative Code Rule 61G15-31.

4. Petitioner is charged with providing administrative,

investigative, and prosecutorial services to the Florida Board

of Professional Engineers pursuant to Subsection 471.038(4),

Florida Statutes.

5. The Florida Board of Professional Engineers regulates

the practice of engineering pursuant to Chapters 455 and 471,

Florida Statutes.

6. The Administrative Complaint alleges that Respondent's

structural engineering plans were deficient and failed to comply

with acceptable standards of engineering practice, citing five

instances:

A. The masonry wall on Gridline A at the first

level is not adequately designed in that it is

overstressed when compared to the Florida Building

Code specified wind loads.

B. The block parapet walls at Elevation and

are, also, not adequately designed insofar as they

are overstressed when compared to the Florida Building

Code specified wind loads.

C. Wall Sections A and B on Sheet 1.10 show

tapered balcony slabs with a one-inch step. The wall

sections are inconsistent with the Typical Cantilever

Balcony Detail on Sheet S2.01 and reduce the cover on

the tendon to less than one inch required by the

Florida Building Code.

D. The placement of reinforcing bars in the

bottom of the cantilevered balcony slabs on Sheets

S2.02, S2.04 and S2.06 cannot be reasonably determined

from the information on these sheets.

E. Sheet S2.10 shows that the stair adjacent to

the elevator must rise from the fourth floor at

Elevation to the level of the pool deck at

Elevation . This is a rise of 14 feet and

contrasts with the stair at Gridline A which rises

from the fourth floor and terminates at the fifth

floor at Elevation . As a result, the stair

adjacent to the elevator requires an additional stair

run and a landing neither of which have been addressed

in Respondent's design documents.

A. The masonry wall on Gridline A at the first level is not

adequately designed in that it is overstressed when compared

to the Florida Building Code specified wind loads.

7. On Sheets S1.03 and S1.04 Respondent's structural

engineering plans show a concrete masonry wall at Gridline A

extending from reference lines 1.1 to 1.8 on the west side of

the building; the floor-to-floor distance is 15 feet. The wall

is subject to appreciable gravity load from above through

vertical connective rebar. Post tension design of the floor

system is unique; when the post tension concrete slab deflects,

the vertical rebar will transfer the load to the wall in

question.

8. As a result of this loading, the subject wall receives

loading in more than one direction and should be defined as a

main wind force resisting system and should be designed as it is

in Respondent's plans.

9. The suggestion by Petitioner's experts that the wall is

overstressed by 22 or 65 percent is a result of applying

conservative values and failing to include the vertical load on

the wall. Within the conservative and non-conservative values

allowed by the Florida Building Code, there could be a

400-percent yield difference. The conclusion that the wall is

overstressed by 22 or 65 percent does not prove negligence.

B. The block parapet walls at Elevation and are not

adequately designed insofar as they are overstressed when

compared to the Florida Building Code specified wind loads.

10. Average vertical bar spacing, as used by Respondent in

the design of the subject parapet walls, is allowed by the

Florida Building Code and is called the "plate" method of

design. Petitioner's experts used calculations based on the

"strip" method, also allowed by the Florida Building Code. The

resulting suggestion that the parapet walls are overstressed by

24 or 62 percent is a result of the differences in analysis of

the two methods and the application of conservative values. As

stated above, the application of conservative or non-

conservative values can result in a 400-percent yield

differential.

C. Wall Sections A and B on Sheet 1.10 show tapered balcony

slabs with a one-inch step. The Wall Sections are

inconsistent with the Typical Cantilever Balcony Detail on

Sheet S2.01 and reduce the cover on the tendon to less than

one inch required by the Florida Building Code.

11. The subject wall sections are full wall sections and

are not inconsistent, but demonstrate, generally, what the wall

will look like. The slab design does not remain constant. The

Typical Cantilever Balcony Detail on Sheet S2.01 shows that the

post tension slab steps down at the top and bottom. The

one-inch step-down prevents wind-driven rain from flowing in

from outdoors. The resultant one-inch step-down on the bottom

of the slab relates to maintaining proper clearance on the

tendon.

12. The detail (Typical Cantilever Balcony Detail on Sheet

S2.01) demonstrates the one-inch step-down and would not be

confused by an experienced post-tension subcontractor. The

plans consistently refer to an eight-inch slab.

D. The placement of reinforcing bars in the bottom of the

cantilevered balcony slabs on Sheets S2.02, S2.04 and S2.06

cannot be reasonably determined from the information on these

sheets.

13. The exact placement of mild reinforcement in post

tension design is not important. These plans are adequate in

that they label the location of the bars (top or bottom) and

clearly describe how the bars should be distributed.

14. This item, according to Petitioner's expert, is not

related to design, but to drawing preparation. Testimony

revealed that the information used is imported through AutoCad

software. These notes are clearly understandable to someone

experienced with post tension design and construction.

E. Sheet S2.10 shows that the stair adjacent to the elevator

must rise from the fourth floor at Elevation to the level

of the pool deck at Elevation . This is a rise of 14 feet

and contrasts with the stair at Gridline A, which rises from

the fourth floor and terminates at the fifth floor at

Elevation . As a result, the stair adjacent to the

elevator requires an additional stair run and a landing

neither of which have been addressed in Respondent's design

documents.

15. There is a similar staircase from the ground floor to

the fifth floor elevation. An ancillary detail, Section G on

Sheet S1.13 shows how to get from the fifth floor slab to the

pool deck. Section G has three different staircases that show

the contractor how the stairs should be constructed. The

additional stair run is addressed on this section.

16. The design and drawings comply with Section 1603.1 of

the Florida Building Code, which states that "[t]he design loads

and other information pertinent to the structural design

required by Sections 1603.1. through 1603.1.8 shall be clearly

indicated on the construction documents." Drawing presentations

and which portions of the structure require more detail, is

largely an opinion matter for each engineer to decide as long as

he complies with the Florida Building Code.

17. Respondent's expert witness, each of whom had

excellent credentials and vast experience with post-tension

design of floor systems, opined that Respondent's structural

engineering documents for the subject project were not negligent

in any way, and Respondent's drawings and calculations conform

to acceptable engineering standards and safeguard the life,

health, property and welfare of the public. Their testimony on

the five alleged areas of negligence and their general

conclusions are credible.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat. (2008).

19. Subsection 471.038(3), Florida Statutes, authorizes

Petitioner to provide administrative, investigative, and

prosecutorial services to the Board of Professional Engineers.

20. Petitioner must prove the allegations of its

Administrative Complaint by clear and convincing evidence.

Department of Banking and Finance v. Osborne Stern and Company,

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

So. 2d 292 (Fla. 1987).

21. The "clear and convincing" standard requires:

[T]hat the 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 weight that it produces in the

mind of the trier of fact a firm belief or

conviction, 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).

22. Statutes that authorize the imposition of penal

sanctions must be strictly construed and any ambiguity must be

construed in favor of Respondent. Elmariah v. Department of

Business and Professional Regulation , 574 So. 2d 164, 165 (Fla.

1st DCA 1990). The Florida lenity statute, Subsection

775.021(1), Florida Statutes, provides that "offenses" defined

by any Florida Statutes must be construed most favorably to the

offender if the language is susceptible to different meanings.

Pasquale v. Florida Elections Commission , 759 So. 2d 23, 26

(Fla. 4th DCA 2000).

23. Petitioner must present expert testimony proving both

the standard and deviation, where a negligent violation of

general standards of professional conduct is alleged. Purvis v.

Department of Professional Regulation , 461 So. 2d 134 (Fla. 1st

DCA 1984).

24. Subsection 471.033(1)(g), Florida Statutes, reads as

follows:

(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.

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

as follows:

(4) A professional engineer shall 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 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. Failure to comply with the

procedures set forth in the Responsibility

Rules as adopted by the Board of

Professional Engineers shall be considered

as non-compliance with this section unless

the deviation or departures therefrom are

justified by the specific circumstances of

the project in question and the sound

professional judgment of the professional

engineer.

26. Florida Administrative Code Rule 61G15-30.002(1) reads

as follows:

Engineer of Record. A Florida professional

engineer who is in responsible charge for

the preparation, signing, dating, sealing

and issuing of any engineering document(s)

for any engineering service or creative

work.

27. Florida Administrative Code Rule 61G15-31.002(1)

and (5) reads as follows:

(1) Engineer of Record for the Structure.

The Florida registered professional engineer

who develops the structural design criteria

and structural framing concept for the

structure, performs the analysis and is

responsible for the preparation of the

structural construction documents.

* * *

(5) Structural Engineering Documents. The

structural drawings, specifications and

other documents setting forth the overall

design and requirements for the

construction, alteration, modernization,

repair, removal, demolition, arrangement

and/or use of the structure, prepared by and

signed and sealed by the engineer of record

for the structure. Structural engineering

documents shall identify the project and

specify design criteria both for the overall

structure and for structural components and

structural systems. The drawings shall

identify the nature, magnitude and location

of all design loads to be imposed on the

structure. The structural engineering

documents shall provide construction

requirements to indicate the nature and

character of the work and to describe,

detail, label and define the structure's

components, systems, materials, assemblies,

and equipment.

28. Florida Administrative Code Rule 61G15-31.001 reads as

follows:

The engineer of record for a structure is

responsible for all structural aspects of

the design of the structure including the

design of all of the structure's systems and

components. As noted herein the engineer of

record for a structure may delegate

responsibility for the design of a system or

component part of the structure to a

qualified delegated engineer. In either

case the structural documents shall address,

as a minimum, the items noted in the

following subsections covering specific

structural systems or components. Both the

engineer of record for the structure and the

delegated engineer, if utilized, shall

comply with the requirements of the general

responsibility rules, and with the

requirements of the more specific structural

responsibility rules contained herein.

29. Petitioner has failed to prove clearly and

convincingly that Respondent was negligent as alleged. At best,

the case Petitioner presented is weak. Post-tension design is a

unique area of structural engineering. Respondent and his

experts presented convincing evidence of their personal

experience in the field and that his project design was

appropriate and met the standards of professional conduct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Board of Professional

Engineers, issue a final order dismissing the Administrative

Complaint filed against Respondent, Garry Vermaas, Ph.D., P.E.

DONE AND ENTERED this 4th day of March, 2009, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of March, 2009.

COPIES FURNISHED :

Paul J. Martin, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 N Monroe Street

Tallahassee, Florida 32399-0792

John Jefferson Rimes, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Garry Vermaas

Ground Floor Engineering

10125 West Colonial Boulevard, Suite 212

Ocoee, Florida 34761

Patrick Creehan, Esquire

Chief Prosecuting Attorney

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

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.