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


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8FLORIDA ENGINEERS MANAGEMENT )

12CORPORATION, )

14)

15Petitioner, )

17)

18vs. ) Case No. 08-4422PL

23)

24GARRY VERMAAS, P.E., )

28)

29Respondent. )

31)

32RECOMMENDED ORDER

34Pursuant to notice, the Division of Administrative

41Hearings, by its duly-designated Administrative Law Judge,

48Jeff B. Clark, held a final administrative hearing in this case

59on December 16, 2008, in Orlando, Florida.

66APPEARANCES

67For Petitioner: John Jefferson Rimes, Esquire

73Florida Engineers Management Corporation

772507 Callaway Road, Suite 200

82Tallahassee, Florida 32303-5267

85For Respondent: Garry Vermaas, Ph.D., P.E., pro se

93Ground Floor Engineering

9610125 West Colonial Boulevard, Suite 212

102Ocoee, Florida 34761

105STATEMENT OF THE ISSUE

109Whether Respondent, Garry Vermaas, Ph.D., P.E., committed

116the acts alleged in the Administrative Complaint (as submitted

125in the parties' joint pre-hearing submission).

131PRELIMINARY STATEMENT

133On March 20, 2008, Petitioner, Florida Engineers Management

141Corporation, filed an Administrative Complaint alleging that

148Respondent, Garry Vermaas, Ph.D., P.E., had violated Florida law

157and had been negligent in the practice of engineering. In

167essence, the Administrative Complaint alleged that Respondent

174was the engineer of record on a project and had sealed, signed,

186and dated engineering documents that were "deficient and failed

195to comply with acceptable standards of engineering principles."

203Therefore, Respondent was negligent in the practice of

211engineering. The specific deficiencies were:

216A. The masonry wall on Gridline A at the first

226level is not adequately designed in that it is

235overstressed when compared to the Florida Building

242Code (the Code) specified wind loads.

248B. The block parapet walls at Elevation and

256are, also, not adequately designed insofar as they

264are overstressed when compared to the Florida Building

272Code specified wind loads.

276C. Wall Sections A and B on Sheet 1.10 show

286tapered balcony slabs with a one-inch step. The wall

295sections are inconsistent with the Typical Cantilever

302Balcony Detail on Sheet S2.01 and reduce the cover on

312the tendon to less than one inch required by the

322Florida Building Code.

325D. The placement of reinforcing bars in the

333bottom of the cantilevered balcony slabs on Sheets

341S2.02, S2.04, and S2.06 cannot be reasonably

348determined from the information on these sheets.

355E. Sheet S2.10 shows that the stair adjacent to

364the elevator must rise from the fourth floor at

373Elevation to the level of the pool deck at

382Elevation . This is a rise of 14 feet and

392contrasts with the stair at Gridline A, which rises

401from the fourth floor and terminates at the fifth

410floor at Elevation . As a result, the stair

419adjacent to the elevator requires an additional stair

427run and a landing neither of which have been addressed

437in Respondent's design documents.

441On April 14, 2008, Respondent requested an administrative

449hearing. Petitioner forwarded the case to the Division of

458Administrative Hearings on September 9, 2008. On September 10,

4672008, an Initial Order was sent to both parties. Based on the

479parties' response to the Initial Order, on October 6, 2008, the

490case was scheduled for final hearing in Orlando, Florida, on

500November 19, 2008.

503On October 30, 2008, Respondent's Motion for Continuance

511was granted; the case was rescheduled for December 16, 2008.

521The case was presented as rescheduled.

527Petitioner presented two witnesses: James Owen Power,

534P.E., and Joseph M. Berryman, P.E., whose deposition testimony

543of November 24, 2008, was accepted in lieu of live testimony.

554Both Messrs. Power and Berryman were accepted as expert

563witnesses in structural engineering. Petitioner entered seven

570exhibits into evidence that were marked Petitioner's Exhibits A

579through F and Change of Petitioner's Exhibit F. Petitioner's

588Exhibits A through E are also admitted and marked as they are in

601the Berryman deposition. Respondent testified on his own behalf

610and presented two witnesses: Adam Ginsburg, P.E., and Yousheng

"619Jeff" Cheng, Ph.D. Respondent, Mr. Ginsburg and Dr. Cheng were

629accepted as expert witnesses in structural engineering.

636The parties agreed to submit proposed recommended orders

64430 days from the filing of the transcript. The Transcript of

655Proceedings was filed with the Clerk of the Division of

665Administrative Hearings on January 6, 2009. Both parties timely

674filed Proposed Recommended Orders.

678All statutory references are to Florida Statutes (2006),

686unless otherwise noted.

689FINDINGS OF FACT

692Based on the oral and documentary evidence presented at the

702final hearing, the following Findings of Fact are made:

7111. At all times material to the allegations in the

721Administrative Complaint, Respondent was a licensed professional

728engineer with License No. PE 61163.

7342. Respondent was the structural engineer of record for a

74413-unit apartment building complex located at 214 Salamanca

752Avenue, Coral Gables, Florida. As such, on or about January 24,

7632007, Respondent signed and sealed the last iteration of

772structural engineering documents for the project which were

780filed with the City of Coral Gables, Florida, as part of the

792application for a building permit.

7973. Respondent was the structural engineer of record for

806the above-referenced project as that term is used in Florida

816Administrative Code Rule 61G15-31.

8204. Petitioner is charged with providing administrative,

827investigative, and prosecutorial services to the Florida Board

835of Professional Engineers pursuant to Subsection 471.038(4),

842Florida Statutes.

8445. The Florida Board of Professional Engineers regulates

852the practice of engineering pursuant to Chapters 455 and 471,

862Florida Statutes.

8646. The Administrative Complaint alleges that Respondent's

871structural engineering plans were deficient and failed to comply

880with acceptable standards of engineering practice, citing five

888instances:

889A. The masonry wall on Gridline A at the first

899level is not adequately designed in that it is

908overstressed when compared to the Florida Building

915Code specified wind loads.

919B. The block parapet walls at Elevation and

927are, also, not adequately designed insofar as they

935are overstressed when compared to the Florida Building

943Code specified wind loads.

947C. Wall Sections A and B on Sheet 1.10 show

957tapered balcony slabs with a one-inch step. The wall

966sections are inconsistent with the Typical Cantilever

973Balcony Detail on Sheet S2.01 and reduce the cover on

983the tendon to less than one inch required by the

993Florida Building Code.

996D. The placement of reinforcing bars in the

1004bottom of the cantilevered balcony slabs on Sheets

1012S2.02, S2.04 and S2.06 cannot be reasonably determined

1020from the information on these sheets.

1026E. Sheet S2.10 shows that the stair adjacent to

1035the elevator must rise from the fourth floor at

1044Elevation to the level of the pool deck at

1053Elevation . This is a rise of 14 feet and

1063contrasts with the stair at Gridline A which rises

1072from the fourth floor and terminates at the fifth

1081floor at Elevation . As a result, the stair

1090adjacent to the elevator requires an additional stair

1098run and a landing neither of which have been addressed

1108in Respondent's design documents.

1112A. The masonry wall on Gridline A at the first level is not

1125adequately designed in that it is overstressed when compared

1134to the Florida Building Code specified wind loads.

11427. On Sheets S1.03 and S1.04 Respondent's structural

1150engineering plans show a concrete masonry wall at Gridline A

1160extending from reference lines 1.1 to 1.8 on the west side of

1172the building; the floor-to-floor distance is 15 feet. The wall

1182is subject to appreciable gravity load from above through

1191vertical connective rebar. Post tension design of the floor

1200system is unique; when the post tension concrete slab deflects,

1210the vertical rebar will transfer the load to the wall in

1221question.

12228. As a result of this loading, the subject wall receives

1233loading in more than one direction and should be defined as a

1245main wind force resisting system and should be designed as it is

1257in Respondent's plans.

12609. The suggestion by Petitioner's experts that the wall is

1270overstressed by 22 or 65 percent is a result of applying

1281conservative values and failing to include the vertical load on

1291the wall. Within the conservative and non-conservative values

1299allowed by the Florida Building Code, there could be a

1309400-percent yield difference. The conclusion that the wall is

1318overstressed by 22 or 65 percent does not prove negligence.

1328B. The block parapet walls at Elevation and are not

1338adequately designed insofar as they are overstressed when

1346compared to the Florida Building Code specified wind loads.

135510. Average vertical bar spacing, as used by Respondent in

1365the design of the subject parapet walls, is allowed by the

1376Florida Building Code and is called the "plate" method of

1386design. Petitioner's experts used calculations based on the

"1394strip" method, also allowed by the Florida Building Code. The

1404resulting suggestion that the parapet walls are overstressed by

141324 or 62 percent is a result of the differences in analysis of

1426the two methods and the application of conservative values. As

1436stated above, the application of conservative or non-

1444conservative values can result in a 400-percent yield

1452differential.

1453C. Wall Sections A and B on Sheet 1.10 show tapered balcony

1465slabs with a one-inch step. The Wall Sections are

1474inconsistent with the Typical Cantilever Balcony Detail on

1482Sheet S2.01 and reduce the cover on the tendon to less than

1494one inch required by the Florida Building Code.

150211. The subject wall sections are full wall sections and

1512are not inconsistent, but demonstrate, generally, what the wall

1521will look like. The slab design does not remain constant. The

1532Typical Cantilever Balcony Detail on Sheet S2.01 shows that the

1542post tension slab steps down at the top and bottom. The

1553one-inch step-down prevents wind-driven rain from flowing in

1561from outdoors. The resultant one-inch step-down on the bottom

1570of the slab relates to maintaining proper clearance on the

1580tendon.

158112. The detail (Typical Cantilever Balcony Detail on Sheet

1590S2.01) demonstrates the one-inch step-down and would not be

1599confused by an experienced post-tension subcontractor. The

1606plans consistently refer to an eight-inch slab.

1613D. The placement of reinforcing bars in the bottom of the

1624cantilevered balcony slabs on Sheets S2.02, S2.04 and S2.06

1633cannot be reasonably determined from the information on these

1642sheets.

164313. The exact placement of mild reinforcement in post

1652tension design is not important. These plans are adequate in

1662that they label the location of the bars (top or bottom) and

1674clearly describe how the bars should be distributed.

168214. This item, according to Petitioner's expert, is not

1691related to design, but to drawing preparation. Testimony

1699revealed that the information used is imported through AutoCad

1708software. These notes are clearly understandable to someone

1716experienced with post tension design and construction.

1723E. Sheet S2.10 shows that the stair adjacent to the elevator

1734must rise from the fourth floor at Elevation to the level

1745of the pool deck at Elevation . This is a rise of 14 feet

1759and contrasts with the stair at Gridline A, which rises from

1770the fourth floor and terminates at the fifth floor at

1780Elevation . As a result, the stair adjacent to the

1790elevator requires an additional stair run and a landing

1799neither of which have been addressed in Respondent's design

1808documents.

180915. There is a similar staircase from the ground floor to

1820the fifth floor elevation. An ancillary detail, Section G on

1830Sheet S1.13 shows how to get from the fifth floor slab to the

1843pool deck. Section G has three different staircases that show

1853the contractor how the stairs should be constructed. The

1862additional stair run is addressed on this section.

187016. The design and drawings comply with Section 1603.1 of

1880the Florida Building Code, which states that "[t]he design loads

1890and other information pertinent to the structural design

1898required by Sections 1603.1. through 1603.1.8 shall be clearly

1907indicated on the construction documents." Drawing presentations

1914and which portions of the structure require more detail, is

1924largely an opinion matter for each engineer to decide as long as

1936he complies with the Florida Building Code.

194317. Respondent's expert witness, each of whom had

1951excellent credentials and vast experience with post-tension

1958design of floor systems, opined that Respondent's structural

1966engineering documents for the subject project were not negligent

1975in any way, and Respondent's drawings and calculations conform

1984to acceptable engineering standards and safeguard the life,

1992health, property and welfare of the public. Their testimony on

2002the five alleged areas of negligence and their general

2011conclusions are credible.

2014CONCLUSIONS OF LAW

201718. The Division of Administrative Hearings has

2024jurisdiction over the subject matter of and the parties to this

2035proceeding. § 120.57(1), Fla. Stat. (2008).

204119. Subsection 471.038(3), Florida Statutes, authorizes

2047Petitioner to provide administrative, investigative, and

2053prosecutorial services to the Board of Professional Engineers.

206120. Petitioner must prove the allegations of its

2069Administrative Complaint by clear and convincing evidence.

2076Department of Banking and Finance v. Osborne Stern and Company,

2086Inc. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

2097So. 2d 292 (Fla. 1987).

210221. The "clear and convincing" standard requires:

2109[T]hat the evidence must be found to be

2117credible; the facts to which the witnesses

2124testify must be distinctly remembered; the

2130testimony must be precise and explicit and

2137the witnesses must be lacking in confusion

2144as to the facts in issue. The evidence must

2153be of such weight that it produces in the

2162mind of the trier of fact a firm belief or

2172conviction, without hesitancy, as to the

2178truth of the allegations sought to be

2185established.

2186In Re: Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

2198v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

220922. Statutes that authorize the imposition of penal

2217sanctions must be strictly construed and any ambiguity must be

2227construed in favor of Respondent. Elmariah v. Department of

2236Business and Professional Regulation , 574 So. 2d 164, 165 (Fla.

22461st DCA 1990). The Florida lenity statute, Subsection

2254775.021(1), Florida Statutes, provides that "offenses" defined

2261by any Florida Statutes must be construed most favorably to the

2272offender if the language is susceptible to different meanings.

2281Pasquale v. Florida Elections Commission , 759 So. 2d 23, 26

2291(Fla. 4th DCA 2000).

229523. Petitioner must present expert testimony proving both

2303the standard and deviation, where a negligent violation of

2312general standards of professional conduct is alleged. Purvis v.

2321Department of Professional Regulation , 461 So. 2d 134 (Fla. 1st

2331DCA 1984).

233324. Subsection 471.033(1)(g), Florida Statutes, reads as

2340follows:

2341(1) The following acts constitute grounds

2347for which the disciplinary actions in

2353subsection (3) may be taken:

2358* * *

2361(g) Engaging in fraud or deceit,

2367negligence, incompetence, or misconduct, in

2372the practice of engineering.

237625. Florida Administrative Code Rule 61G15-19.001(4) reads

2383as follows:

2385(4) A professional engineer shall not be

2392negligent in the practice of engineering.

2398The term negligence set forth in Section

2405471.033(1)(g), F.S., is herein defined as

2411the failure by a professional engineer to

2418utilize due care in performing in an

2425engineering capacity or failing to have due

2432regard for acceptable standards of

2437engineering principles. Professional

2440engineers shall approve and seal only those

2447documents that conform to acceptable

2452engineering standards and safeguard the

2457life, health, property and welfare of the

2464public. Failure to comply with the

2470procedures set forth in the Responsibility

2476Rules as adopted by the Board of

2483Professional Engineers shall be considered

2488as non-compliance with this section unless

2494the deviation or departures therefrom are

2500justified by the specific circumstances of

2506the project in question and the sound

2513professional judgment of the professional

2518engineer.

251926. Florida Administrative Code Rule 61G15-30.002(1) reads

2526as follows:

2528Engineer of Record. A Florida professional

2534engineer who is in responsible charge for

2541the preparation, signing, dating, sealing

2546and issuing of any engineering document(s)

2552for any engineering service or creative

2558work.

255927. Florida Administrative Code Rule 61G15-31.002(1)

2565and (5) reads as follows:

2570(1) Engineer of Record for the Structure.

2577The Florida registered professional engineer

2582who develops the structural design criteria

2588and structural framing concept for the

2594structure, performs the analysis and is

2600responsible for the preparation of the

2606structural construction documents.

2609* * *

2612(5) Structural Engineering Documents. The

2617structural drawings, specifications and

2621other documents setting forth the overall

2627design and requirements for the

2632construction, alteration, modernization,

2635repair, removal, demolition, arrangement

2639and/or use of the structure, prepared by and

2647signed and sealed by the engineer of record

2655for the structure. Structural engineering

2660documents shall identify the project and

2666specify design criteria both for the overall

2673structure and for structural components and

2679structural systems. The drawings shall

2684identify the nature, magnitude and location

2690of all design loads to be imposed on the

2699structure. The structural engineering

2703documents shall provide construction

2707requirements to indicate the nature and

2713character of the work and to describe,

2720detail, label and define the structure's

2726components, systems, materials, assemblies,

2730and equipment.

273228. Florida Administrative Code Rule 61G15-31.001 reads as

2740follows:

2741The engineer of record for a structure is

2749responsible for all structural aspects of

2755the design of the structure including the

2762design of all of the structure's systems and

2770components. As noted herein the engineer of

2777record for a structure may delegate

2783responsibility for the design of a system or

2791component part of the structure to a

2798qualified delegated engineer. In either

2803case the structural documents shall address,

2809as a minimum, the items noted in the

2817following subsections covering specific

2821structural systems or components. Both the

2827engineer of record for the structure and the

2835delegated engineer, if utilized, shall

2840comply with the requirements of the general

2847responsibility rules, and with the

2852requirements of the more specific structural

2858responsibility rules contained herein.

286229. Petitioner has failed to prove clearly and

2870convincingly that Respondent was negligent as alleged. At best,

2879the case Petitioner presented is weak. Post-tension design is a

2889unique area of structural engineering. Respondent and his

2897experts presented convincing evidence of their personal

2904experience in the field and that his project design was

2914appropriate and met the standards of professional conduct.

2922RECOMMENDATION

2923Based on the foregoing Findings of Fact and Conclusions of

2933Law, it is

2936RECOMMENDED that Petitioner, Board of Professional

2942Engineers, issue a final order dismissing the Administrative

2950Complaint filed against Respondent, Garry Vermaas, Ph.D., P.E.

2958DONE AND ENTERED this 4th day of March, 2009, in

2968Tallahassee, Leon County, Florida.

2972S

2973JEFF B. CLARK

2976Administrative Law Judge

2979Division of Administrative Hearings

2983The DeSoto Building

29861230 Apalachee Parkway

2989Tallahassee, Florida 32399-3060

2992(850) 488-9675

2994Fax Filing (850) 921-6847

2998www.doah.state.fl.us

2999Filed with the Clerk of the

3005Division of Administrative Hearings

3009this 4th day of March, 2009.

3015COPIES FURNISHED :

3018Paul J. Martin, Executive Director

3023Board of Professional Engineers

3027Department of Business and

3031Professional Regulation

30332507 Callaway Road, Suite 200

3038Tallahassee, Florida 32303-5267

3041Ned Luczynski, General Counsel

3045Department of Business and

3049Professional Regulation

3051Northwood Centre

30531940 N Monroe Street

3057Tallahassee, Florida 32399-0792

3060John Jefferson Rimes, Esquire

3064Florida Engineers Management Corporation

30682507 Callaway Road, Suite 200

3073Tallahassee, Florida 32303-5267

3076Garry Vermaas

3078Ground Floor Engineering

308110125 West Colonial Boulevard, Suite 212

3087Ocoee, Florida 34761

3090Patrick Creehan, Esquire

3093Chief Prosecuting Attorney

3096Florida Engineers Management Corporation

31002507 Callaway Road, Suite 200

3105Tallahassee, Florida 32303-5267

3108NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3114All parties have the right to submit written exceptions within

312415 days from the date of this Recommended Order. Any exceptions

3135to this Recommended Order should be filed with the agency that

3146will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/04/2009
Proceedings: Recommended Order
PDF:
Date: 03/04/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 03/04/2009
Proceedings: Recommended Order (hearing held December 16, 2008). CASE CLOSED.
PDF:
Date: 02/06/2009
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 02/06/2009
Proceedings: (Respondent`s) Proposed Recommended Order filed.
Date: 01/06/2009
Proceedings: Transcript (Volumes I&II) filed.
Date: 12/16/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 12/12/2008
Proceedings: Amended Order Granting Continuance and Re-scheduling Hearing (hearing set for December 16, 2008; 9:00 a.m.; Orlando, FL).
PDF:
Date: 10/30/2008
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for December 16, 2008; 9:00 a.m.; Orlando, FL).
PDF:
Date: 10/29/2008
Proceedings: Motion for Continuance filed.
PDF:
Date: 10/28/2008
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 10/24/2008
Proceedings: Order Granting Motion to Withdraw.
PDF:
Date: 10/23/2008
Proceedings: Motion to Withdraw filed.
PDF:
Date: 10/06/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/06/2008
Proceedings: Notice of Hearing (hearing set for November 19, 2008; 9:00 a.m.; Orlando, FL).
PDF:
Date: 09/23/2008
Proceedings: Amended Initial Order.
PDF:
Date: 09/22/2008
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 09/16/2008
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 09/10/2008
Proceedings: Initial Order.
PDF:
Date: 09/09/2008
Proceedings: Administrative Complaint filed.
PDF:
Date: 09/09/2008
Proceedings: Election of Rights filed.
PDF:
Date: 09/09/2008
Proceedings: Agency referral filed.

Case Information

Judge:
JEFF B. CLARK
Date Filed:
09/09/2008
Date Assignment:
12/02/2008
Last Docket Entry:
03/04/2009
Location:
Orlando, Florida
District:
Middle
Agency:
Department of Business and Professional Regulation
Suffix:
PL
 

Counsels

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