13-004046PL Florida Board Of Professional Engineers vs. Oliver Turzak, P.E. Status: Closed Recommended Order on Tuesday, May 6, 2014.

Summary: Respondent's violations of the applicable statutes and rules of the Board of Professional Engineers warrant a reprimand, suspension, fine, and probation on his license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF PROFESSIONAL

ENGINEERS,

Petitioner,

vs. Case No. 13 - 4046PL

OLIVER TURZAK, P.E.,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings (DOAH), on January 9 and 10, 2014, by

video teleconferencing at sites located in Tampa and Tallahassee,

Florida.

APPEARANCES

For Petitione r: John Jefferson Rimes, III, Esquire

Florida Engineers Management Corporation

2639 North Monroe Street, Suite B - 112

Tallahassee, Florida 32303

For Respondent: David P. Rankin, Esquire

Law Office of David P. Rankin, P.A.

18540 North Dale Mabry Highway

Lutz, Florida 33548

STATEMENT OF THE ISSUE

The issue is whether Oliver J. Turzak violated statutes and

rules governing the practice of engineering as ch arged in the

Amended Administrative Complaint filed with the Clerk of the

Florida Board of Professional Engineers (the ÐBoardÑ) on

October 4, 2012.

PRELIMINARY STATEMENT

Petitioner served an Administrative Complaint on Respondent

alleging that Respondent h ad violated various provisions of

c hapter 471, Florida Statutes, and related rules. Respondent

requested a hearing under sections 120.569 and 120.57(1), Florida

Statutes. Petitioner forwarded the Answer and Administrative

Complaint to DOAH and requested that an administrative law judge

(ÐALJÑ) be assigned to hear the case. The case was opened,

assigned C ase No. 13 - 1470PL, and a hearing was scheduled;

however, prior to the hearing, the parties entered into

settlement negotiations and mutually agreed to ca ncel the

hearing. The ALJ entered an Order Closing File and Relinquishing

Jurisdiction on July 11, 2013.

Settlement negotiations proved unsuccessful , and Petitioner

moved DOAH to reopen the case on October 16, 2013. The ALJ

subsequently entered an Order Reopening File on October 17, 2013,

and assigned the current case number of 13 - 4046PL. A Joint

Pre - hearing Stipulation was filed with DOAH on January 2, 2014.

The hearing was held on January 9 and 10, 2014. During the

hearing, Petitioner offered 17 ex hibits, all of which were

admitted into evidence. Respondent offered 13 exhibits,

numbered 2 through 11, 13, 15, and 19, all of which were admitted

into evidence. Petitioner called three witnesses: Roger

Jeffery, P.E., accepted as an expert in structura l engineering

with expertise in the design and analysis of structures , which

are subject to remediation and remediation plans; Matthew R.

Depin, E . I . , p roject e ngineer with Bracken Engineering, Inc. ; and

Jos é C. Busquets, P.E., p roject e ngineer with Bracke n

Engineering, Inc. Respondent called two witnesses: Dr. Ahmed

Said, accepted as an expert in structural engineering and

professional engineering regarding the forensic analysis of

sinkhole subsidence and remediation; and Michael Mosher, owner

and presid ent of Champion Foundation Repair.

A two - volume Transcript of the final hearing was filed on

January 28, 2014. After the hearing, Respondent and Petitioner

filed their proposed findings of fact and conclusions of law on

February 24, 2014.

References to statutes are to Florida Statutes (2013) unless

otherwise noted.

FINDING S OF FACT

1. Petitioner is charged with regulating the practice of

engineering pursuant to chapter 455, Florida Statutes. The

Administrative Complaint at issue was filed by the Flo rida

Engineers Management Corporation (ÐFEMCÑ) on behalf of

Petitioner. FEMC is charged with providing administrative,

investigative, and prosecutorial services to the Florida Board of

Professional Engineers pursuant to section 471.038, Florida

Statutes.

2. Respondent is, and at all times material to these

proceedings has been, a licensed professional engineer in the

State of Florida, having been issued license number PE 18230.

RespondentÓs last known address is 5405 Water Street, New Port

Richey, Flor ida 34652.

3. On April 20, 2008, Respondent signed, sealed, and dated

a Settlement Stabilization Plan for the Fish Residence located at

11251 Knotty Pine Dr ive , New Port Richey, Florida (Ð Fish

Residence ProjectÑ).

4. On June 10, 2008, Respondent signed, sealed, and dated

an engineering opinion letter (ÐLetterÑ) which was addressed and

sent to Champion Foundation Repair, the entity which was

RespondentÓs client for the Fish Residence Project. The Letter

stated in material part:

[Respondent], whose signatu re appears below,

has verified placement of twenty - seven (27)

exterior piers and twenty - five (25) interior

jack pins as located on the drawings by the

same job number. The piers all achieved

sufficient load bearing characteristics to

transfer the house we ight to the piers and to

close cracks substantially and stabilize the

foundation. The remediation program was

developed according to geological data

supplied by Central Florida Testing

Laboratories, Inc., dated November 2007.

Similar pier reports on nume rous structures

with similar problems have demonstrated long

term success without additional settlement.

Therefore, it is the opinion of the

[Respondent] that the location has been

repaired and stabilized and, further, that

there is no evidence of new sin khole activity

at the location.

In compliance with Florida Statute 627.707,

the report and remediation program was

prepared under the supervision of a

Registered Professional, whose field of

expertise is a Geo - Technical Engineer.

5. The Board has adopte d Responsibility Rules of

Professional Engineers (ÐResponsibility RulesÑ). These rules are

contained in Florida Administrative Code C hapter s 61G15 - 30

through 61G15 - 35. Professional e ngineers , who perform services

covered by the Responsibility Rules , are required to comply with

those rules.

6. Rule 61G15 - 30.002(1) mandates that Respondent, as the

structural engineer of record, is professionally responsible for

the documents prepared for the Fish Residence Project. As such,

Respondent is responsible for p roducing a document that complies

with the applicable portions of the Responsibility Rules.

7. Respondent acted as Engineer of Record of the Structure

for the Fish Residence Project as that term is defined in rules

61G15 - 31.00 2 (1) and 61G 15 - 31.00 3 (1). As such, all structural

documents prepared, signed, sealed, and dated by Respondent must

contain the information set out in rule 61G15 - 31.002(5), as

mandated by rule 61G15 - 31.001, setting out the General

Responsibility standards for engineers designing struc tures.

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

an engineer is subject to discipline for engaging in negligence

in the practice of engineering. Florida Administrative Code

Rule 61G15 - 19.001(4) provides that negligence constitutes

Ðfailur e 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.Ñ

9. Rule 61G15 - 19.001(4) also provides that:

[ F ] ailure to comply with the procedure s set

f orth 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 que stion and

the sound professional judgment of the

professional engineer.

10. RespondentÓs June 10, 2008, Letter is an engineering

ÐcertificationÑ as that term is defined in Florida Administrative

Code R ule 61G15 - 18.011(4):

[A] statement signed and sealed by a

professional engineer representing that the

engineering services addressed therein, as

defined in section 471.005(6), F.S., have

been performed by the professional engineer,

and based upon the professional engineerÓs

knowledge, information and belief, and in

accordance with commonly accepted procedures

consistent with applicable standards of

practice , . . . .

ÐCertificationsÑ are subject to the standards set out in Florida

Administrative Code R ule 61G15 - 29.001, which require that if an

engineer is pre sented with a ÐcertificationÑ that Ðinvolve[s]

matters which are beyond the engineerÓs scope of services

actually providedÑ that the engineer must Ðdecline to sign . . .

such certification.Ñ

11. Section 471.033(1)(a) provides that an engineer is

subject t o discipline for Ð[v]iolating . . . [a] rule of the

[B]oard . Ñ

12. Section 471.033(1)(e) provides, in material part, that

a professional engineer is subject to discipline for Ð[m]aking or

filing a report or record that the licensee knows to be falseÑ

when the report is Ðsigned in the capacity of a licensed

engineer.Ñ

13. Rule 61G15 - 19.001(6) provides that:

A professional engineer shall not commit

misconduct in the practice of engineering.

Misconduct in the practice of engineering as

set forth in Section 47 1.033(1)(g), F.S.,

shall include, but not be limited to:

* * *

(b) Being untruthful, deceptive, or

misleading in any professional report,

statement, or testimony whether or not under

oath or omitting relevant and pertinent

information from such repo rt, statement or

testimony when the result of such omission

would or reasonably could lead to a

fallacious conclusion on the part of the

client, employer or the general

public ; . . . .

The Fish Residence

14. In 2007, the r esidence located at 11251 Knotty Pine

Drive in New Port Richey, Florida (the ÐFish ResidenceÑ) ,

experienced structural damage from subsidence in the ground

underlying the home. As a result, a claim was made to FishÓs

insurance company , and an investigation was commenced. Central

Florid a Testing Laboratories, Inc. (ÐCFTLÑ) , a geotechnical

engineering firm, performed an in - depth analysis and found , in a

signed, sealed, and dated engineering report issued on

November 20, 2007, that the subsidence was likely caused by a

number of factors, i ncluding sinkhole activity.

15. As a result, the Fish e s hired a contractor, Champion

Foundation Repair (ÐChampionÑ) to remediate the damage. Champion

hired Respondent to perform the engineering services necessary to

obtain a permit for the remediation , i nspect the construction ,

and complete a report certifying the adequate completion of the

work.

16. Respondent had a long history of providing similar

services to Champion in the past, having performed engineering

services in over 200 projects for Champi on. Respondent created,

signed, sealed, and dated on April 20, 2008, a Settlement

Stabilization Plan (ÐPlanÑ) , which formed the design basis for

the work Champion carried out.

17. Well into the project, the Fishes became dissatisfied

with the work done b y Champion. Champion was terminated as the

contractor before the work was finalized and before Respondent

was able to perform a final inspection of the property.

Litigation was commenced and Bracken Engineering (ÐBrackenÑ), a

forensic structural/civil en gineering firm was engaged to perform

an investigation of the work performed by Champion and Respondent

for the pending litigation.

18. Bracken issued a lengthy engineering report (ÐBracken

ReportÑ), under engineering seal, on June 20, 2011. The Bracken

Report found RespondentÓs Plan deficient, that Respondent was not

adequately knowledgeable about the site, that ChampionÓs

implementation of the Plan, and ChampionÓs construction work as a

whole was flawed and inadequate. Subsequent to the issuance of

the Bracken Report, a complaint was filed with the Board , and

these proceedings were initiated.

Settlement Stabilization Plan for the Fish Residence

19. Roger Jeffery opined that the Plan failed to meet

required engineering standards. The parties agree that when a

structure, such as the Fish Residence Project, is initially

built, the loads are directly transferred to the foundation ,

which then transfers the loads directly and uniformly as a

continuously supported structure to the underlying soil.

20. Howeve r, when, as occurred in this case, the

structureÓs loads are no longer transferred directly and

uniformly to the ground through the foundation, but are

transferred through pins which underlie the foundation, the

foundation itself now acts as a beam or beam s and is subject to

the stresses applied to the beams.

21. Respondent asserted that the foundation load would

remain continuous, and therefore stable, since grouting had been

poured under the Fish Residence to consolidate and stabilize the

soils. However , RespondentÓs plan did not call for grouting to

be used. Moreover, according to the Bracken Report, no grouting

was ever placed under the Fish Residence , even though it was

called for in the CFTL Report to stabilize the structure.

RespondentÓs failure t o perform a final inspection resulted in an

inaccurate assumption and opinion.

22. RespondentÓs claim that grouting placed in the void

under the structure reconstituted the original soil conditions is

rejected, especially in light of the fact that Respond ent also

analyzed the pins and foundation in a beam configuration -- a

simple span beam. Further, RespondentÓs analysis must be

discounted because the calculations justifying his conclusion

that the structure was adequately supported was performed in

Decemb er 2013, well after these proceedings commenced and more

than five years after the Plan had been created by Respondent.

23. As a result of the changed structural support system

(from ground support to pins), the position of the pins is

critical to the sta bility of the structure. If the pins are too

far apart for the strength of the foundationÓs materials to

accommodate the foundation, now acting as a beam or beams, the

foundation will be overstressed. Cracking, at a minimum, or

collapse, at a maximum, ca n occur.

24. Cracking or collapse can occur because the concrete

slab foundation used at the Fish Residence does not have any

existing top reinforcing steel in it. When asked if perhaps

reinforcing steel might have been placed within the slab itself,

Mr. Jeffery stated he had never seen such use of steel in over

40 years. No evidence to support the steel within the slab

theory was presented.

25. When the newly installed pins become the structural

support, a negative bending moment is introduced to the t op of

the foundation, now acting as a beam. The top of the foundation

is made only of concrete, which has little ability to resist the

induced negative moment. As a result, deflection, racking, and

ultimate failure will be the result if the pin placement and the

spans created by the placement are inadequately designed.

RespondentÓs after - the - fact calculations do not address this

issue.

26. Using a continuous beam analysis, the preferred method

to evaluate the beam/pin assemblage design in structures lik e the

Fish Residence , the spacing of the pins (usually ten feet apart)

designed by Respondent coupled with the loads generated by the

foundation and the lack of reinforcing steel in the top portion

of the foundation would result in stress that would exceed the

strength of the concrete and, at a minimum, the concrete would

eventually crack. Dr. Ahmed Said, RespondentÓs expert, agreed

with this conclusion. Even using a simple beam analysis, the

design method Respondent testified he used and that Dr. Said

ag reed was commonly used, movement, resulting in cracks at the

foundation slab, would occur. Again, since no reinforc ing steel

exists at the top of the slab, as a matter of simple physics, the

concrete would have to respond to the deflection that would occu r

at the bottom of the foundation and, concrete being weak, would

likely crack or worse at the top.

27. Respondent provided no persuasive rebuttal to

Mr. JefferyÓs analysis. First, Respondent claimed that

elevations taken at the site in 2013 showed minim al deflective

movement, proving the Plan design was sufficient. However,

Mr. Jeffery noted that subsequent elevations taken at the

completed structure would have little meaning regarding the

adequacy of the design since: the design stands alone and is no t

affected by how the contractor implemented it; and no one could

know whether the design, as constructed, would withstand the

required stresses until it was subjected to full design loading,

which would have to include the full wind loads to which the

str ucture was designed. There is no evidence the structure was

ever subjected to such stress in the period between its

construction in 2008 and the later recorded elevations.

28. Next, Respondent claimed the 3 - foot ÐspreadersÑ

attached to the pins would red uce the span of the foundation

acting as a beam and thus would overcome the lack of reinforcing

steel in the top of the foundation and the resulting overstress.

The problem with this assertion is that the Plan does not call

for ÐspreadersÑ to be placed in the design by any notations that

are readily and universally cognizable. Respondent admitted that

the symbol regarding the use of the spreaders was agreed to only

between Champion and him, and was not included in the Plan.

However, even if the notations used by Respondent could be

interpreted as calling for the use of the Ðspreaders , Ñ the

ÐspreadersÑ would not materially impact the fact that the

foundation, acting as a beam, would be overstressed, since a

negative moment would still exist due to the lack of reinforcing

steel at the top of the foundation.

29. Finally, Respondent asserted that Mr. JefferyÓs

analysis was flawed since Mr. Jeffery had assumed the Fish

Residence was a masonry structure whereas Respondent claimed the

structure was a wood frame covered with a stucco exterior. This

issue is confused by the fact that both the CFTL and Bracken

Reports, upon which Mr. Jeffery relied, both stated the Fish

Residence was a masonry structure, although the CFTL Report notes

the structure was initially co nstructed as wood frame. In any

event, Mr. Jeffery testified that regardless of the masonry

versus wood frame question, the structure would still be

overstressed. Changing the construction from masonry to wood

frame/stucco veneer might lessen the overstr ess, but not

materially.

30. In addition to the overstress created by failing to

address the induced negative moment at the top of the foundation,

RespondentÓs design also resulted in a shear load which exceeded

the maximum allowable under the American Co ncrete Institute

318 Concrete Code; and, since that c ode is incorporated into the

Florida Building Code (ÐFBCÑ), the requirements of the FBC as

well. The shear load factor is especially relevant since

Respondent did not assure that the pins would not be p laced under

windows and doors where this issue is critical. Respondent did

not address the shear issue as it applied to windows and doors in

his after - the - fact calculations.

31. The Plan is also deficient since it did not indicate

the placement of window s and doors in the Fish Residence Project.

By not doing so, the pins, when put in the ground, could be

placed underneath these internal spaces which do not then form a

continuous roof/wall/foundation assembly. If that occurred, and

it apparently did in t he Fish Residence on four occasions, the

shear problem described above is exacerbated, since at either

side of a door or window a point load is created and the shear

stress increased.

32. The Plan also fails to include required information.

While the Pla n calls for the use of a ÐFastSteelÑ product, the

Plan does not include any product specification number or the

strength of the material to be used. Although Respondent stated

that the contractor, based upon its experience, knew what was

intended, ultimat ely Respondent admitted that the required

information was not in the Plan. Similarly, the Plan did not

include the design loads and criteria used in the design and

provided no building codes and standards. Respondent admitted

the Plan lacked this require d information.

33. The missing information is important. Only by

including such information on design documents can the engineer

adequately communicate to the reviewing building code plans

examiner or a contractor what the design engineer intended. By

n ot including this required information, the reviewer can be

uncertain as to whether the engineer used the correct loadings or

designed the structure in accordance with the correct edition of

the building code. Similarly, failing to provide sufficient

info rmation concerning the products to be used may lead a

contractor to utilize the wrong product during construction.

34. The Plan was submitted to Pasco County for issuance of

a permit. The county building department issued a permit for the

work to be per formed. Mike Mosher of Champion believed the Plan

included all the specifications he needed to identify the

components to be used and the manner in which the work was to be

performed. He also testified the work was completed consistent

with the Plan.

The June 10, 2008, Certification Letter

35. Respondent issued the June 10, 2008 Certification

Letter (ÐLetterÑ) under seal to his client before he completed

the inspections necessary for the conclusions in the L etter to

accurately reflect the opinions contai ned in it. Both Respondent

and his client, Champion, agree that since the client had been

denied access to the Fish Residence Project, no final inspection

of the site by Respondent ever occurred. As a result, Respondent

admitted that, when he signed, sea led, and issued the Letter, the

engineering services, upon which the certification in the Letter

was based, had not yet occurred.

36. The evidence proved that RespondentÓs last appearance

at the Fish Residence Project occurred on or about May 5, 2008,

and that most of the work done at the site occurred after that

date with the final construction finishing on or about May 30,

2008. As a result, the conclusions and opinions contained in the

Letter were not based upon accurate and contemporaneous

engineering analysis. Since the L etter purports to be grounded

in engineering inspections, the statements in the Letter were not

fully based upon the services Respondent actually provided.

37. While not entirely clear from the evidence and

testimony, had R espondent had the ability to perform a final

inspection, he would have had the opportunity to discover several

deficiencies in the construction. The Bracken Report detailed

several deficiencies and non - conformances with the Remediation

Plan. These deficiencies in cluded: 1) failure to drive 5/6ths

of the pilings to the depth prescribed by the notes to the Plan;

2) a large number of pins found beneath door and window openings;

3) mis - installation of pins and pin assemblages; and 4) no

grouting placed in the ground although Respondent intended that

grouting be used. Respondent agreed that at least some of the

Bracken Report conclusions were warranted.

38. Respondent asserts that, although the Letter was issued

prematurely, Respondent should not be held accountable since the

Letter Ðnever went public.Ñ This contention is rejected. The

Letter was a final engineering report/certification and, upon

issuance to RespondentÓs client, Champion, was fully subject to

all engineering standards, rules, and statutes. Since th e Letter

contained conclusions that were inaccurate and based upon

information that was not collected under RespondentÓs direct

supervision, issuance of the Letter constituted negligence and

misconduct in the practice of engineering.

RespondentÓs Prior His tory of Discipline

39. Respondent has previously had discipline imposed. The

instant case is the first in more than 40 years of Respondent

practicing engineering that involved a subsidence remediation

plan.

40. RespondentÓs first prior discipline was in FEMC Case

No. 00 - 0086. In that case, Respondent was hired to correct

building code issues identified by a county building department.

The drawings he made violated the building code requirements,

contained deficiencies, and were not in compliance with the

standard practice of engineering. Respondent proceeded to

hearing without benefit of legal counsel. A final order was

entered by the Board reprimanding his license, fining him $1,000 ,

plus costs of $302.93, placing him on probation for one year, and

requiring he complete a course in professionalism and ethics

while on probation.

41. RespondentÓs second prior discipline was in FEMC Case

No. 01 - 0079. That matter was based upon drawings that were dated

February 16, 2001. Respondent was not represente d by counsel in

that proceeding. In that proceeding, no proof was presented that

the structure depicted in the plans by Respondent was ever built.

Therefore, no direct risk of harm to the public was proven .

42. Respondent entered into a Settlement Sti pulation in

that matter which was approved by the Board of Professional

Engineers. He agreed to pay a total administrative fine of

$7,000 , plus $316.67 in costs and receive a reprimand on his

license. He also received a one - year suspension of his license ,

followed by two years Ó probation, and continuing education

requirements.

43. The other instance of discipline imposed against

Respondent was in FEMC Case No. 2004037005. That complaint arose

from plans that were signed by Respondent in June 2004. He w as

charged with signing plans he had not personally prepared or were

not prepared under his supervision.

44. Respondent entered into a Settlement Stipulation in

that case that was approved by the Board. He paid a $5,000

administrative fine and costs of $750; received a reprimand on

his license; received two years of probation; and was required to

make detailed reporting to the FEMC during the probationary

period.

45. No additional evidence of prior disciplinary matters

was offered other than the t hree case s described above.

CONCLUSIONS OF LAW

4 6 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

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

4 7 . Section 471.038(3), Florida Statutes, author izes FEMC

to provide administrative, investigative, and prosecutorial

services to Petitioner.

4 8 . Because administrative fines are penal in nature,

Petitioner has the burden of proving by clear and convincing

evidence the allegations of the Administrative Complaint. Dep't

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

4 9 . The Ðclear and convincingÑ standard requires:

[T]hat the evidence must be found to be

credible; the fact s 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 tri er 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) ) .

50 . Statutes th at authorize the imposition of penal

sanctions are strictly construed. Any ambiguity in the law is

construed in favor of Respondent. Elmariah v. DepÓt of ProfÓl

Reg. , 574 So. 2d 164, 165 (Fla. 1st DCA 1990).

COUNT I: The Fish Residence Stabilization Pla n

5 1 . Count I of the Administrative Complaint in this matter

charged Respondent with negligence in the practice of engineering

as provided in section 471.033(1)(g) and rule 61G15 - 19.001(4).

5 2 . The material portion of section 471.033(1)(g) , which

grants the Board the authority to discipline a professional

engineer for negligence in the practice of engineering , reads as

follows: Ð (1) The following acts constitute grounds for which

the disciplinary actions in subsection (3) may be taken: . . .

(g) Engag ing in . . . , negligence . . . in the practice of

engineering. Ñ

5 3 . Rule 61G1 5 - 19.001(4) further defines ÐnegligenceÑ as

follows:

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

appro ve 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 Pr ofessional 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 enginee r.

5 4 . As delineated in the F indings of F act above,

RespondentÓs Plan failed to adhere to accepted engineering

standards and failed to comply with the requirements of the

BoardÓs Responsibility Rules.

5 5 . Where, as here, a licensee is charged with a ne gligent

violation of a specific standard of professional conduct, namely,

the failure to exercise the degree of care reasonably expected of

a professional, the agency must present expert testimony that

proves the required professional conduct , as well as t he

deviation from that conduct. Purvis v. DepÓt of ProfÓl Reg. , 461

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

5 6 . The relevant provisions of the Responsibility Rules

applicable to the charges in the Administrative Complaint include

rule 61G15 - 30.002(1), which appl ies to RespondentÓs duties on the

Fish Residence Project: Ð (1) 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. Ñ

5 7 . Rule 61G15 - 30.003(1) sets out general rules for all

engineering projects and states:

(1) Engineering Documents are prepared in

the course of performing engineering

services. When prepared for inclusion with

an application for a general building permit,

the Documents shall meet all EngineerÓs

Responsibility Rules, set forth in Chapters

61G15 - 31, 61G15 - 32, 61G15 - 33, and 61G15 - 34,

F.A.C., and be of sufficient clarity to

indicate the location, nature and extent of

the work prop osed and show in detail that it

will conform to the provisions of the Florida

Building Code, adopted in Section 553.73,

F.S., and applicable laws, ordinances, rules

and regulations, as determined by the AHJ.

The Documents shall include:

(a) Information t hat provides material

specifications required for the safe

operation of the system that is a result of

engineering calculations, knowledge and

experience.

(b) List Federal, State, Municipal, and

County standards, codes, ordinances, laws,

and rules, with t heir effective dates, that

the Engineering Documents are intended to

conform to.

(c) Information, as determined by the

Engineer of Record, needed for the safe and

efficient operation of the system.

(d) List engineering design criteria;

reference project specific studies, reports,

and delegated Engineering Documents.

(e) Identify clearly elements of the design

that vary from the governing standards and

depict/identify the alternate method used to

ensure compliance with the stated purpose of

these Responsi bility Rules.

5 8 . Rule 61G15 - 31.001 applies to structural design making

it applicable to this issue. It states:

The Engineer of Record is responsible for all

structural aspects of the design of the

structure including the design of all of the

structureÓ s systems and components. As noted

herein the engineer of record may delegate

responsibility for the design of a system or

component part of the structure to a

delegated engineer. In either case the

structural engineering documents shall

address, as a mi nimum, the items noted in the

following subsections covering specific

structural systems or components. The

Engineer of RecordÓs structural engineering

documents shall identify delegated systems

and components. Both the Engineer of Record

for the structu re and the delegated engineer,

if utilized, shall comply with the

requirements of the general responsibility

rules, Chapter 61G15 - 30, F.A.C., and with the

requirements of the more specific structural

responsibility rules contained herein. The

Engineer of Record for the Structural

System(s) shall provide design requirements

in writing to the delegated engineer if one

is used and shall review the design documents

of the delegated engineer for conformance

with his written instructions in accordance

with Rule 61G15 - 30.005, F.A.C. When

information collected from the engineer or

the engineerÓs authorized representative from

a site visit is part of the engineerÓs

deliverative [sic] process, the engineer is

responsible for the accuracy of such

information.

5 9 . R ule 61G15 - 31.002(1) and (5) a lso applies to structural

design and states:

(1) Engineer of Record. The Florida

licensed professional engineer who develops

the overall structural design and the

structural design criteria for the structure,

and is responsib le for the preparation of the

structural engineering documents.

* * *

(5) Structural Engineering Documents. The

structural drawings, specifications and other

documents setting forth the overall design

and requirements for the construction,

alterati on, 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 o verall 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 requ irements 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.

60 . At the hearing, Roger Jeffery, P.E., testified for

Petitioner that the stan dard of conduct for a professional

engineer charged with designing a structure requires the

specifications and calculations accurately to reflect the design

assumptions and conclusions . Moreover, under the standard of

conduct for a P.E., t hose specificati ons and calculations must

comply with code requirements and be free of material errors and

admissions. The evidence is clear and convincing that Respondent

did not me e t th ese standard s of conduct in RespondentÓs design

documents.

61. As explained in the foregoing F indings of F act,

Respondent failed to account for the fact that the structural

underpinnings of the foundation of the Fish Residence Project

changed from a continuous load bearing structure to a beam/column

structure when the soil became unstabl e and pins and piers were

placed beneath the structure. At that point, Respondent should

have taken account of the reconfigured stresses placed upon the

foundation. However, as the expert testimony of Mr. Jeffery

conclusively showed, Respondent did not a dequately analyze,

calculate, or account for the stresses that would now be imposed

on the unreinforced top portion of the foundation, when

Respondent formulated the Plan. As a result, the Plan, as

designed, resulted in a foundation that was substantially

overstressed and would likely be subject to cracking or worse

when subject to expected design loads.

62. There is no dispute that the inclusion of adequate

information in the design of a foundation stabilization plan is

necessary. Mr. JefferyÓs testimon y , which is credited here , is

that the design and specifications must be complete and

internally coherent so that the contractor is adequately guided

as to the methods by which the design is to be built. Based upon

the facts identified by PetitionerÓs exp ert, Mr. Jeffery, the

evidence is clear and convincing that RespondentÓs designs and

specifications for the Fish Residence Project fail to meet this

standard.

63. The evidence supports a finding that Respondent failed

to design the Fish Residence Project in accordance with the

standards adopted by the Board and FBC, that the errors and

omissions were material, and that Respondent failed to justify

the lack of compliance with accepted engineering standards. This

final omission is particularly telling in li ght of the fact that

under r ule 61G15 - 30.003(1)(a) , all information contained on the

design documents must derive from engineering calculations where,

as here, such calculations were needed and were performed.

Respondent provided no calculations that were performed before

Respondent signed, sealed, and dated the Plan for the Fish

Residence Project. All that Respondent produced were after - the -

fact calculations produced well after these proceedings

commenced. Such an after - the - fact hypothesis of what an en gineer

could have intended must be rejected in favor of what the

evidence showed the professional engineer actually designed and

calculated. See FEMC v. Plowfield , Case No. 04 - 4117PL ( Fla. DOAH

Aug. 8, 2005; Fla. DBPR Jan. 27, 2006 ) (failure to calculate

loads is negligence).

64. It is the burden of Petitioner to show that Respondent

was negligent in the practice of engineering. That burden is met

by Petitioner proving by clear and convincing evidence that

Respondent Ðfail[ed] . . . to utilize due care i n performing in

an engineering capacity or fail[ed] to have due regard for

acceptable standards of engineering principles.Ñ Fla. Admin.

Code R . 61G15 - 19.001(4). Evidence of a professional engineerÓs

failure to use due care in engineering performance and to have

due regard for engineering standards can come from a professional

engineerÓs failure to adhere to accepted engineering technical

codes and mandated engineering design standards.

65. Florida law has long held that the failure on the part

of an en gineer to comply with mandatory adopted design standards

constitutes prima facie evidence of negligence. Henry v. Britt ,

220 So. 2d 917, 920 (Fla. 4th DCA 1969) (engineerÓs failure to

design pool in accordance with building code constituted

negligent fail ure to comply with minimum standard of design which

could not be excused by evidence of practice in accordance with

other professional standards); Holland v . Baguette, Inc. , 540

So. 2d 197 (Fla. 3d DCA 1989) (building code constitutes standard

of construct ion and failure to comply with the codeÓs

requirements constituted prima facie evidence of negligence).

66. Moreover, it has long been held that the failure of a

design professional to comply with the applicable building code

justifies a finding of profes sional negligence independent of any

other remedy created by statute. See Seibert v. Bayport Beach &

Tennis Club AssÓn , 573 So. 2d 889, 891 (Fla. 2d DCA 1990)

(statutory remedy and common law negligence theories each

provided independent basis for finding liability deriving from

architectÓs violating building code). Lack of compliance with

the FBC (or other applicable technical codes) can provide a basis

to determine that the engineer was guilty of negligence and

therefore subject to discipline of the pro fessional engineerÓs

license. See, e.g. , Fla. Bd . of ProfÓl Engineers v. Yazji , Case

No. 09 - 4296PL ( Fla. DOAH Jan. 20, 2010; Fla. DBPR Mar. 23, 2010);

Fla. Engineers Mgmt. Corp. v. Vermaas , Case No. 08 - 4422PL (Fla.

DOAH Mar. 4, 2009) ; and Fla. Engineers M gmt. Corp. v. Potts , Case

No. 07 - 2862 ( Fla. DOAH Sep. 26, 2007; Fla. DBPR Mar. 12, 2008).

67. The fact that a building official or department

accepted the professional engineerÓs plans and issued a permit

does no t excuse the professional engineer from com plying with

professional standards of practice adopted by the Board. The

acceptance of plans by a building official has never acted to

preclude the imposition of Board discipline for negligent design

upon a design professional. Fla. Bd . of ProfÓl Enginee rs v.

Wood , DOAH Case No. 11 - 5348PL ( Fla. DOAH Nov. 6, 2012; Fla. DBPR

Mar. 18 , 20 13), affÓd per curiam , 127 So. 3d 508 (Fla. 1st DCA

2013); Juhn v. DepÓt of ProfÓl Reg. , 431 So. 2d 190, 192 (Fla.

1st DCA 1983) (even though design work was accepted as adeq uate

by permitting officials, and no questions were raised as to basic

deficiencies or inconsistencies by the permitting officials,

architect was subject to discipline by board for failing to meet

the boardÓs statutory and rule standards for acceptable des ign

documents); see also , Bd. o f ProfÓl Engineers v. Evans , Case

No. 98 - 1877 ( Fla. DOAH Dec. 30 1998; Fla. DBPR Feb. 18, 1999).

COUNT II: The June 8, 2008, Letter

68. Count II of the Administrative Complaint charged

Respondent with violating section 471.0 33(1)(g) and

rule 61G15 - 19.001(6)(b) by engaging in misconduct in the practice

of engineering by issuing an untruthful and misleading report;

and with violating section 471.033(1)(e) by issuing a false

report which was signed in the capacity of a professi onal

engineer.

69. The material portion of section 471.033(1)(g), which

grants the Board the authority to discipline a professional

engineer for misconduct in the practice of engineering reads as

follows: Ð (1) The following acts constitute grounds for which

the disciplinary actions in subsection (3) may be taken: . . .

(g) Engaging in . . . misconduct . . . in the practice of

engineering. Ñ

70. Rule 61G15 - 19.001(6)(b) states that it is ÐmisconductÑ

if a P rofessional Engineer is :

Being untruthful, deceptive, or misleading in

any professional report, statement, or

testimony whether or not under oath or

omitting relevant and pertinent information

from such report, statement or testimony when

the result of suc h omission would or

reasonably could lead to a fallacious

conclusion on the part of the client,

employer or the general public;

71. Section 471.033(1)(e) states, in material part:

Ð(1) The following acts constitute grounds for which the

disciplinary act ions in subsection (3) may be taken: Making or

filing a false report or record that the licensee knows to be

false . . . .Ñ

72. Rule 61G15 - 18.011(4), Definitions, states:

ÐCertificationÑ shall mean a statement signed

and sealed by a professional engineer

representing that the engineering services

addressed therein, as defined in Section

471.005(6), F.S., have been performed by the

professional engineer, and based upon the

professional engineerÓs knowledge,

information and belief, and in accordance

with co mmonly accepted procedures consistent

with applicable standards of practice, and is

not a guaranty or warranty, either expressed

or implied.

73. Rule 61G15 - 29.001 provides:

(1) The term ÐCertificationÑ as used herein

shall be as set forth in Rule 61G15 -

18.011(4), F.A.C.

(2) When an engineer is presented with a

certification to be signed, dated, and

sealed, he or she shall carefully evaluate

that certification to determine if any of the

circumstances set forth in subsection (3)

would apply. If any of th ese circumstances

would apply, that engineer shall either:

(a) modify such certification to limit its

scope to those matters which the engineer can

properly sign, date, and seal, or (b) decline

to sign, date and seal such certification.

(3) Engineers who sign, date and seal

certifications which: (a) relate to matters

which are beyond the engineerÓs technical

competence, or (b) involve matters which are

beyond the engineerÓs scope of services

actually provided, or (c) relate to matters

which were not prepa red under engineerÓs

responsible supervision, direction, or

control; would be subject to discipline

pursuant to subsection 61G15 - 19.001(6),

F.A.C.

74. The act of signing and sealing an engineering document ,

including a certification report is Ðmore than just a public

acknowledgement that the engineer was the engineer of record.

The engineerÓs signature and seal on the [document] represent

that the [document is] suitable for . . . [the] purposes . . .

[for] which it was issued.Ñ Fla. Engineers Mgmt. Corp . v.

Hansen , Case Nos. 01 - 4397PL and 01 - 4439PL ( Fla. DOAH Mar. 21,

2002; Fla. DBPR June 14, 2002). See also rule 61G15 - 23.002(7) ,

which states :

A professional engineer shall not seal plans,

reports or other documents which are not

final documents unless t he professional

engineer clearly notes any limitations on the

use of the documents or plans on the face of

the documents or plans, by using terms such

as ÐPreliminary,Ñ ÐFor Review Only,Ñ ÐNot for

Construction,Ñ or any other suitable

statement which denote s that the documents

are for limited use, are not final and are

not intended for permit, construction, or

bidding purposes.

75. As explained in the foregoing Findings of Fact, on

June 10, 2008, Respondent issued a signed, sealed, and dated

certification report to RespondentÓs client, Champion, which

verified that the Plan at the Fish Residence Project comprising

the piers and pins set out in the Plan had been ÐverifiedÑ as

having been accomplished. In fact, Respondent had never been

able to ÐverifyÑ any final information at the Fish Residence

Project since no final inspection had ever occurred. Moreover,

if Respondent had made a final inspection, it is likely he would

have identified at least some of the omissions and errors in

construction that were ful ly described in the Bracken Report ,

such as the fact that nearly all of the piers had not been driven

to the depth required by RespondentÓs Plan.

76. RespondentÓs June 10, 2008, Letter was inaccu r ate and

reflected a false certification, since the basis fo r the

certification Î - the f i nal inspection - Î had never occurred.

RespondentÓs claim that the Letter did not represent the issuance

of a final engineering report since it was not filed for public

record is rejected. Section 471.025(1), Florida Statutes,

requires that all Ðfinal drawings, specifications, plans,

reports, or documents prepared or issued by the licensee and

being filed for public record and all final documents provided to

the owner or the ownerÓs representative shall be signed by the

license e, dated, and sealed with said seal.Ñ When Respondent

signed and sealed the Letter and issued it to RespondentÓs

client, Respondent was then professionally responsible for the

engineering conclusions and findings in the Letter regardless of

whether the cl ient ultimately filed the Letter with a public

entity.

Penalty

77. The BoardÓs guidelines for penalties to be imposed

against Respondent are set forth in rule 61G15 - 19.004.

Subsection (2) of that rule provides that for an initial offense,

the following penalties may be imposed:

(2) The following disciplinary guidelines

shall be followed by the Board in imposing

disciplinary penalties upon licensees for

violation of the below mentioned statutes and

rules:

VIOLATION PENALTY RANGE

FIRST VIOLATION SECON D AND

SUBSEQUENT

VIOLATIONS

(a) Violating any provision Re primand and One (1) year

of Section 455.227(1), $1,000 fine, to suspension, two

471.025 or 471.031, F.S., One (1) year (2) years

or any other provision of suspension, two probation and

Chapter 471, F.S., or rule (2) years $5,000 fine to

of the Board or Department probation and Revocation

(Sections 471.033(1)(a) and $5,000 fine

455.227(1)(b), (q), F.S)

* * *

2.a. Negligence Reprimand, two ( 2) Two (2) years

(subsection 61G15 - years probation probation and

19.001(4), F.A.C.) and $1,000 fine, $1,000 fine, to

to $5,000 fine, $5,000 fine and

five (5) year Revocation

suspension and ten

(10) years

probation

* * *

4. Misconduct Reprimand and One (1) year

(subsection 61G15 - $1,000 fine to one suspension to

19.001(6), F.A.C.) (1) year Revocation and

suspension $5,000 fine.

* * *

b. Being untruthful, Reprimand and One (1) year

deceptive or misleading in $1,000 fine to one suspension to

any professional report, (1) year Revocatio n and

statement or testimony or suspension $5,000 fine

omitting relevant and

pertinent information from

such report, statement or

testimony when the result

or such omission would or

reasonably could lead to a

fallacious conclusion

(paragraph 61G15 -

19.001(6)(b), F.A.C.)

78. As noted previously, this is not RespondentÓs initial

offense. Respondent was disciplined by the Board in 2001, 2002,

and 2008 in FEMC Case Nos. 00 - 0086, 01 - 0079, and 2004037005,

respectively. As a result, the penalties imposed i n this matter

should be drawn from the upper (more severe) end of the

applicable penalty ranges.

79. Respondent, Oliver Turzak, P.E., violated the following

statutory and rule provisions:

(A) Section 471.033(1)(g) and rule 61G15 - 19.001(4) by being

neglig ent in the practice of engineering (Administrative

Complaint Count I); and

(B) Section 471.033(1)(e) and rule 61G15 - 19.001(6)(b) by

issuing a false, untruthful, or misleading report which was

signed in the capacity of a professional engineer (Administrati ve

Complaint Count II).

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent Oliver TurzakÓs Professional Engineer

license be r eprimanded, and that the license shall be s uspended

for a period of one year. Upon termination of the s uspension,

Respondent shall be reinstated under terms and conditions of

reinstatement as the Board determines are appropriate, including

two years of p robation with terms the Board deems appropriate.

Respondent shall also be fined $1,000 per count ($2,000 total

fine). Finally, Petitioner shall be entitled to assess c osts

which are related to the investigation and prosecution of this

case, other than costs or fees associated with an attorneyÓs

time, as provided in section 455.227(3 ), Florida Statutes.

DONE AND ENTERED this 6th day of May , 2014 , in Tallahassee,

Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, F lorida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of May , 2014 .

COPIES FURNISHED:

Zana Raybon, Executive Director

Board of Professional Engineer s

Department of Business and

Professional Regulation

2639 North Monroe Street, Suite B - 112

Tallahassee, Florida 32303

Michael Flury, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

J. Layne Smith, Ge neral Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

David P. Rankin, Esquire

Law Office of David P. Rankin, P.A.

18540 North Dale Mabry Highway

Lutz, Florida 33548

John Jefferson Rimes , III , Esquire

Florida Engineers Management Corporation

2639 North Monroe Street , Suite B - 112

Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days f rom 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.