17-003840PL Florida Board Of Professional Engineers vs. Earl E. Henry, P.E. Status: Closed Recommended Order on Tuesday, January 9, 2018.

Summary: Petitioner proved by clear and convincing evidence Respondent engaged in negligence in the preparation of renovation plans, warranting probation on his license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF PROFESSIONAL

ENGINEERS,

Petitioner,

vs. Case No. 17 - 3840PL

EARL E. HENRY, P.E.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On October 26, 2 017, this case came before Administrative

Law Judge Hetal Desai for final hearing in Tallahassee, Florida.

APPEARANCES

For Petitioner: John Jefferson Rimes III, Esquire

Florida Engineers Management Corporation

2639 North Monroe Street , Suite B - 112

Tallahassee, Florida 32303 - 5268

For Respondent: Earl E. Henry, P.E. , pro se

6880 52nd Street North

Pinellas Park, Florida 33781

STATEMENT OF THE ISSUE S

The issues in this ca se are w hether Respondent was negligent

in the practice of engineering in violation of section

471.0 33(1)(g), Florida Statutes (2014 ), 1/ as alleged in the

Administrative Complaint ; and , if so, what sanction should be

imposed.

PRELIMINARY STATEMENT

On Ma y 19, 2017, the Florida Enginee rs Management

Corporation (ÐFEMCÑ) filed a four - count Administrative Complaint

on behalf of the Florida Board of Professional Engineers

( Ð Petitioner Ñ or Ð Board Ñ ) against Earl D. Henry, P.E.

( Ð Respondent Ñ or Ð Mr. Henry Ñ ), alle ging he was negligent in the

practice of engineering by drafting and submitting engineering

documents that were not in compliance with th e Responsibility

Rules of Professional Engineers (ÐResponsibility RulesÑ or

ÐrulesÑ) found in Florida Administrative Co de C hapters 61 G 15 - 30

to 61G 15 - 36 or with acceptable engineering principles .

Count I Î Electrical Design Documents

Count II Î Mechanical (HVAC) Design Documents

Count III Î Mechanical Design Documents

Count IV Î Structural Engineering Documents

On June 7, Mr. Henry disputed the allegations and requested

a hearing pursuant to section 120.57(1), Florida Statutes (2017) .

T he Board referred the Administrative Complaint to the Division

of Administrative Hearings ( Ð DOAH Ñ ) for assignment of an

administrative law judge ( Ð ALJ Ñ ) .

On September 21, Petitioner filed a Notice of Dismissal of

Certain Allegations in the Administrative Complaint withdrawing

Count II .

The final hearing was held on October 26 in Tallahassee,

Florida. Petitioner offered the testimony of th e following:

(1) Homer A. Ooten, P.E., LEED - AP, an expert in electrical

and mechanical engineering ; and

(2) Roger L. Jeffery, P.E., LEED - AP, an e xpert in

structural engineering.

Mr. Henry testified on his own behalf. Petitioner offered seven

exhibits : PetitionerÓs Exhibits 1 through 3 and 5 through 8 .

Mr. Henry offered no exhibits, but had a number of demonstrative

exhibits which were larger copies of PetitionerÓs E xhibits 6

through 8 (eng ineering plans and documents).

The ALJ took notice of various provisions of the Florida

Statutes, the Florida Administrative Co de, and the 2010 Florida

Building Code (ÐFBCÑ) . 2 /

The T ranscript was filed on November 22. Both parties

timely filed proposed recommended orders, which have been

considered.

FINDING S OF FACT

The following findings of fact are based on the testimony

presented at the final hearing, exhibits accepted into evidence,

and matters subject to official recognition.

1. The Board is the state entity charged with regulating

the practice of engineering, pursuant to c hapter 455, Florida

Statutes.

2. FEMC provides administrative, investigative, and

prosecutorial services to the Board pursuant to sec tion 471.038,

Florida Statutes.

3. Mr. Henry obtained his professional engineering license

from the state of Florida in 1992 and has been a licensed

engineer for all times relevant to the issues in this case. His

license number is PE 45894.

4. In May 2014, Mr. Henry provide d an estimate for

engineering services to the owners of Darr Salaam Annex

( Ðproperty own ersÑ) , a religious/community center in

Thonotosassa, F lorida . The services involved the renovation of

an existing one - story buil ding ( Ð Project Ñ ).

5. I niti ally the property owners hired another engineer who

submitted the renovation plans to the appropriat e agencies for a

building permit : the Hillsborough County building plans review

staff ( Ð County Ñ ) and the Hillsborough Count y Fire MarshalsÓ

Office ( Ð FMO Ñ ).

6. T he County rejected the first submittal of the

electrical and mechanical plans on June 26 and J uly 3, 2014; FMO

rejected the submitted plans on June 27, 2014 .

7. T he property owners retained Respondent to be the

engineer of record ( Ð EOR Ñ ) for the Project in August 2014.

8. As the EOR , Respondent prepared, signed, sealed and

submitted documentatio n to the County and FMO f or the Project

numerous times. The following is a summary of his submissions

and the permitting entities Ó responses.

Date of Review Comments Status of Submitted Plan

First resubmittal denied by

October 3, 2014 FMO; second resubmi ttal

required .

October 20, 2014 review denied by County. Corrected electrical plan

October 30, 2014 Building plan review denied by County.

December 21, 2014 denied by County. Corrected electrial plan review

December 22, 2014 Building plan review denied County. by

January 2, 2015 FMO; resubmittal required. Second r esubmittal denied by

February 6, 2015 Third resubmittal denied by FMO .

February 18, 2015 approved by County. Corre c ted electrical plan

February 20, 2015 Building plan Coun ty. s review denied by

February 25, 2015 approved by County. Corrected building plan

March 2, 2015 approved Corrected mechanical p by County . lan

March 13, 2015 Fourth r FMO . esubmittal denied by

March 16, 2015 re Building p s cinded by County. lan approval

9 . The parties presented n o evidence as to whether the

County and FMO ultimately approved the building pla ns or issued a

building permit.

10 . The last plans Mr. Henry prepared and submitted to the

County and FMO consisted of five illustrations including :

(1) a demolit ion plan ; (2) a lighting/ safety plan ; (3) wall

details ; (4) canopy details (structural plan) ; and (5) elevati on

drawings.

1 1 . The demoliti on plan contain s a section titled ÐSCOPE OF

WORK , Ñ which states :

THE THREE DECORATIVE CA NO PI E S ARE TO BE

CONSTRUCT ED AS PER THESE PLANS

THE EXISTING 1 ST FLOOR INTERIORS TO BE

RENOVATE D AS PER THESE PLANS

THE RENOVATED BATHROOMS ARE TO BE WIRED

ALL OTHER EXISTING LIGHTING TO BE RETAINED

OUTLETS ON THE WALL REMOVED ARE [TO] BE

DISCARDED

THE EXISTING AC SYSTEMS ARE TO BE RETAINED [.]

12 . On March 20, 2015, Kevin McGuire, the Plans Reviewer

for the FMO filed a complaint with the Board ( Ð McGuire

Complaint Ñ ) regarding Respondent . Mr. McGuire claimed Mr. Henry

had been repeatedly told the plans were deficient and also bee n

told how to correct them, but that Petitioner failed to address

the issues raised by the FMO in the revised submittals.

Mr. McGuire also stated in his Complaint that -- in his opinion --

Mr. Henry lacked basic knowledge of the Florida Building Code and

the Fire Prevention Code.

13 . Petitioner notified Respondent of the allegations in

the McGuire Complaint. Mr. Henry responded he was not

responsible for the electrical, mechanical and structural plans

and that the Project was not a Ðstraight forward situati on.Ñ

14 . After receipt of the McGuire Complaint and Mr. HenryÓs

response, the BoardÓs Probable Cau se Panel authorized FEMC to

initiate an investigat ion . T hese documents , as well as the final

building plans submitted to the County and FMO , were provided to

f o ur FEMC consultants for review:

(1) Mr. Ooten ( electrical and mechanical elements ) ;

(2) Gerald Zadikoff, P.E. ( structural elements ) ;

(3) Mr. Jeffery ( second review of the structural elements ) ;

and

( 4) Sarah Maman, P.E. ( fire safety and protection

elements ) . 3 /

15 . Based on the engineering reports prepared by these

consultants, the Board filed the Administrat ive Complaint against

Mr. Henry alleging deficiencies in the e lectrical, mechanical and

s tructural design documents.

Overall Violations

1 6 . A s an initial matter, most of Mr. HenryÓs violations

(described in detail below) arise out his lack of description and

specificity in the engineering documents . T he over whelming

evidence establishes most of the deficiencies alleged by

Petitioner could have been avoided had Mr. Henry simply provided

the details required by the rules to (1) describ e the

specifications of the new electrical, plumbing and structural

features ; and (2) distinguish the existing systems more clearly

from those that were being affec ted by the renovations.

RespondentÓs failure, if not refusal, to do so was one of the

reasons the plans were repeatedly rejected by the County and FMO.

17. In general, M r. Henry accept ed responsibility at the

hearing for the Project plans, but he maintai ned that any

departures from the FBC or rules were justified by the specific

circumstances of the project in question and his sound

professional judgment. He did not, however, establish what those

specific or special circumstances were . Both expertsÓ tes timony

and reports established that departures from the r ules, even if

they are justified by circumstances and the professional judgment

of the engineer Ï - which these were not -- must be documented.

Again, Mr. HenryÓs lack of attention to detail in the docum ents

was his downfall ; it cannot be excused by any specific

circumstance or his professional judgment.

18. Respondent also claimed he was not responsible for

describing the existing elements that he did not design . Again,

it is difficult to discern from the documents alone what was in

place be fore the renovation and what would be affected by the

renovation. Mr. Henry admitted, ÐI donÓt have a list of move

this bathroom or move th is outlet or move this here.Ñ Mr. Henry

could have used different colors or metho ds to distinguish the

changes from the original structure, but he did not.

19 . None of the Project documents cite to the relevant

codes, rules, or ordinances that Respondent relied upon as

required by r ule 61G15 - 30.003(1)(b) . The plans simp ly state they

comply with the FBC without noting which version or year

Respondent was using. Mr. Henry believed that his general

citation to the FBC put the plan reviewers and contractor s on

notice of all of the construction code requirements. This

assertion is rejected based on the testimony of Mr. Ooten and

Mr. Jeffery , which established : it i s common practice in the

profession to make specific citations ; and plan reviewers and

contractors have difficulty in evaluating and interpreting

building plans without citations to spec ific statutes, codes, and

rules .

20 . Similarly , Mr. Henry testified he did not have to

provide the sizing and specifications of construction materials

in writing because they we re known by the contractor he was

working with at the time. This contention is rejected based on

Mr. HenryÓs own testimony that others may need this information

to complete the project , and his own admission there was no

guarantee that the specific contractor he was working with would

complete the P roject.

Electric al Violations

21. The Board allege s the electrical ÐLegendÑ section

lacked sufficient symbols or explanations as required by rule

61G15 - 33.004. The small copies of the drawings presented by the

Board were difficult, if not impossible, to read . A t the

he aring, however, Respondent brought actual Î size copies of the

drawings he had sub mitted to the County and FMO and was able to

show that although some information was missing from the ÐLegendÑ

section, this information was located elsewhere in the documents .

As such, the ÐLegendÑ is compliant and does not violate the

Responsibility R ules .

22 . The Board , however, provided clear and convincing

evidence, primarily through the testimony and report of

Mr. Ooten, that the electrical engineering d rawings Mr. Hen ry

prepared were deficient .

(a) The drawings contain an Electrical Riser Diagram, but

no short circuit values and no voltage drop calculations for the

feeders , as required by of r ule 61G15 - 33.003(2)(a) and (f) .

(b ) The drawings do not depict any surge protective devices

nor do they explain why s uch devices were not necessary , as is

required by r ule 61G15 - 33.003(2)(d).

(c ) The drawings do not specify the type of conductor

insulation that is necessary or should be used , as required by

r ule 61G15 - 33.003(2 )(b).

(d ) The drawings contain incomplete circuitry of electrical

outlets , equipment and devices such as air handlers, water

heaters, lighting fixtures and receptacles , and ground fault

circuit interrupter receptacle , as required by r ule 61G15 -

33.003(2)(g ) .

(e ) The grounding conductors r eflected in the drawings are

in adequate and insufficient to satisfy the requirements of

r ule 61G15 - 33.003(2)(i) .

23 . T he electrical information omitt ed by Respondent is

necessary to assure the circuit breakers , wire s , co nductor s and

other electrical components are adequate for the power usage,

because undersized components can overheat and cause fires.

Likewise , the grounding information is necessary to ensure the

building is safe in the event of lightning or an electric al power

surge.

Lighting Violations

24 . The Board also provided clear and convincing evidence

that the lighting plan Mr. Henry prepared w as deficient.

(a ) The drawings lack an y light fixture specifications , as

required by r ule 61G15 - 33.004(2)(a) .

(b ) Th e drawings fail to provide for an appropriate number

of exit lights , in violation of the Florida Fire Prevention Code

and r ule 61 G 15 - 33.004(2)(b) .

(c ) The drawings show no circuiting for any lighting

fixtures, no calculated values for energy usage , and do not

establish that the lighting plan complies with the Florida Energy

Code for Building Construction , as required by r ule 61G15 -

33.004(2)(d) and (e) .

25 . Mr. Henry claimed he was not required to make these

no tations because the renovation incorporated th e existing

lighting. Mr. Henry admitted , however, he could have labeled the

existing lighting fixtures that w ere not going to be modified as

ÐN/AÑ or Ðexisting , Ñ but did not think he need ed to do so because

Ðthe contractor understands this.Ñ Unfortunatel y, what was

existing lighting and what was being changed was not apparent to

the plan reviewers, Mr. Ooten, or the ALJ .

Plumbing Violations

26 . The Board alleged numerous defi ciencies in the plumbing

plan , including that the potable water diagram shown o n Sheet 3

of the drawings lacked designation of the total water fixture

units , as required by r ule 61Gl5 - 34.007(2)(c). Mr. Henry,

however, clarified at the hearing that this information was

contained in the documents , but not on the sheet related to

plumb ing . As such, the Board did not show the water diagram was

insufficient.

27 . The Board , however, did present sufficient eviden ce to

establish Mr. HenryÓs plumbing drawings lack necessary data or

provide incorrect information in violation of the FBC and

a pplicable Responsibility R ules as follows:

(a) The drawings fail to designate fix t ure requirements,

back flow prevention devices, water supply line locations or hot

or cold water line locations other than sewage , as required by

the FBC .

(b) The drawin gs lack plumbing equipment descriptions,

o r material specifications ( i.e. sizes and strengths of the

materials to be used) , as required by r ule 61G15 - 34.007 (2)(a),

(l), and (m).

(c ) The drawings lack designation of storm riser and area

drainage calculati ons , as required by r ule 61G15 - 34.007(2)(e) .

( d ) The drawings lack piping layouts , as required by

r ule 61G15 - 34.007(2)(f).

(e ) The drawings fail to list the applicable plum bing

codes, design standards or requirements , as required by

r ule 61G 15 - 34.007(2 )(i).

28 . The se omission s could result in inadequate water and

sewer capabilities . The lack of drainage calculations make it

difficult to assess the impact the renovations will have on the

existing storm water runoff system.

2 9 . Again, Mr. Henry denie d he was responsible for making

these designations because the renovations , he claims, did not

affect the existing plumbing. The testimony of Mr. Ooten,

however, established : the addition al bathroom features would

affect the total plumbing system , and Mr . Henry should have

better desi gnated what portions would not be affected by the

renovations .

30 . The Board als o established that the P roject plans fail

to designate a han dicap accessible bathroom stall a s required by

r ule 61G15 - 34.007(2)(j ). Although at the hearing , Mr. Henry

showed a larger space where these bathrooms were located on the

plans , they were not clearly marked as ÐhandicapÑ stalls .

Mr. Henry admitted as much and noted, ÐI could have also put a

note in the [the plans that] this was a handi cap bathroom, okay,

but the dimensions speak for themselves. . . . I did not put a

detail for the handicap bathroom. My mistake. All right.

Everybody makes mistakes.Ñ

Structural Violations

31 . The Project renovations included widening the

building Ós do or ways and adding canopies to the rooftop . These

are changes affecting the structural elements of the building .

32 . Based on Mr. Jeff eryÓ s testimony and r eport, the Board

presented clear and conv incing evidence that RespondentÓ s

s tructural e ngineering d e sign d ocuments were professionally and

legally deficient .

( a ) The structural plans fail to provide the live or dead

loads for the roof , as required by the FBC and r ule 61G15 -

31.002(5) . Although Mr. Henry testified these were not necessary

because no chan ges were made to the roof, the plans reflect there

was an addition of three decorative canopies . The structural

plans do not indicate that the live or dead loads remain

unchanged despite these additions . To the contrary,

Mr. JefferyÓ s testimony and repo rt established that the canopies

( even if decorative ) coupled with the changes in doorways would

affect the structural loads . Thus, th e structural plans were

noncompliant.

( b ) There are no structural notes indicating applicable

code or strength of mater ials for masonry, grout, reinforcing

steel and wood , as required by r ule 61G15 - 31.00 3 ( 1 ) (a) .

Mr. Henry claimed that providing the size of the structure beams

was enough to satisfy the rule . This contention is rejected

based on Mr. Jeffe ry Ós testimony :

[ Mr. Henry] : I have here a 2 - by - 6 ridge

beam. A 2 - by - 6 ridge beam . . . is

established what load a 2 by 6 ridge bema

from the American Wood Council. The American

Wood Council has a sort of table that I use.

I donÓt put in in every plan because I

establi sh my own table based on information

from the American Wood Council. A 2 - by - 6

ridge Ï yes [?]

[Mr. Jeffery]: First of all, you havenÓt

even said what speci es of wood it is, so each

species of wood has a different strength.

Secondly, with any species, the reÓs at least

five or six different grades, and each of

those grades has a different strength.

So youÓve got maybe 10 to 15 options that

could be picked from by the contractor, and

youÓve not told him which one to pick.

( c ) The wind loads indicated on the diagrams are inadequate

in that they d o not reflect the new canopies and do not establish

that the structure could withstand or resist the minimum wind

speed. Although the testimony conflicted about whether the 2005

or 2010 standards were applicable, Mr. Jeffery provided

sufficient testimony to establis h that the calculations on the

plan that showed the canopy details were insu fficient under

either standard.

33 . Although knowledgeable about designing the renovations,

Mr. Henry failed to utili ze due c are in performing as the EOR and

failed to have due regard for acceptable standards of engineering

principles in the preparation and submission of the engineering

documents he signed and sealed for the Project.

34 . It was clearly and convincingly shown th at Mr. Henry

was negligent in the preparation and submission of the building

plans for the P roject.

35 . There is nothing in th e record to indicate Respondent

has a history of discipline or has had any other complaint s filed

against him in his 25 years as a licensed professional engineer

in Florida.

36 . The P roject was a renovation of an existing building

with no major changes.

37 . There was no evidence the Board interviewed the

property owners or Project contractor, nor was there evidence of

any actual d amages suffered by the public as a result of

Mr. HenryÓs negligence.

CONCLUSIONS OF LAW

38 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

proceeding under sections 120.569 and 120.57(1), Florida Statutes

(201 6 ).

39 . As a professional engineer, Respondent is subject to

and must comply with th e Responsibility Rules found in

c hapters 61 G 15 - 30 to 61 G 15 - 36.

40 . The Board seeks to take disciplinary action against

RespondentÓs engineering license. A proceeding to impose

discipline against a professional license is punitive in nature,

and Petitioner bears the burden to prove the allegations against

Respondent in the Administrative Complaint by clear and

convincing evidence. See Fla. Dep Ó t of Child. & Fams . v. Davis

Fam. Day Care Home , 160 So. 3d 854, 856 (Fla. 2015) (Ð[A] n agency

must prove its reasons for revoking a professional license by

clear and convincing evidence because such a proceeding is penal

in nature and implicates significant property ri ghts .Ñ).

41 . Clear and convincing evidence is defined as an

in termediate burden of proof that :

[R] r equires that the evidence must be found

to be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precis e 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 allegation s sought to

be established.

S. Fla. Water Mgmt. v. RLI Live Oak, LLC , 139 So. 3d 869, 872

(Fla. 2014) (citations o mitted).

42 . Section 471.033(1)(g) provides Ð[e]ngaging in fraud or

deceit, negligence, incompetence, or misconduct, in the practice

of engi neeringÑ is a ground for disciplinary action.

43 . Section 471.033(2) authorize s and require s the Board to

specify, by rule, what acts or omissions constitute negligence in

the practice of enginee ring. Rule 61G15 - 19.001(4) further

provides :

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 fai ling 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 pub lic.

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 sp ecific

circumstances of the project in question and

the sound professional judgment of the

professional engineer.

44 . Rule 61G15 - 30.002(1) defines the ÐEngineer of RecordÑ

as a Florida professional engineer who is responsible for the

preparation, signing , dating, sealing and issuing of any

engineering document for any engineering service or creative

work. Mr. Henry was the EOR for the Project.

45 . Rule 61G15 - 30.002(4) defines Ðengineering documentsÑ to

be designs, plans, specifications, drawings, prints , reports, or

similar instruments of service in connection with engineering

services or creative work that have been prepared and issued by

the professional engineer or under his responsible supervision,

direction or control. Although there was a differen ce of opinion

between the parties about whether the submi ssions by Respondent

to the County and FMO were Ð drawings Ñ or Ð plans ,Ñ these documents

were Ðengineering documentsÑ as defin ed by the Responsibility

Rules.

46 . Rule 61G15 - 30.002(6) provides that an engineering

document is Ðfiled for public recordÑ when the document is

presented, with the EOR 's knowledge and consent, to any

governmental agency in connection with the transaction of

official business with that agency. Mr. HenryÓs submission (and

resubm issions with corrections) of the plans to obtain a building

permit were Ðfiled for public recordÑ as defined by the

Responsibility Rules.

47 . Rule 61G15 - 30.002(7) provides that documents filed for

public record with the Authority Having Jurisdiction (AHJ ) to

determine compliance with c odes and s tandards and t o be used for

execution of the P roject are required to be signed and sealed.

In this case, t he County and FMO were the AHJ.

4 8 . Rule 61G15 - 30.003 provides the minimum r equire ments for

e ngineering d oc uments , and states in part:

(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 Rul es, 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 proposed and show in

detail that it will conform to the provisions

of the Florida Building C ode, adopted in

Section 553.73, F.S., and applicable laws,

ordinances, rules and regulations, as

determined by the AHJ. The Documents shall:

* * *

(b) List Federal, State, Municipal, and

County standards, codes, ordinances, laws,

and rules, wi th their effective dates, that

the Engineering Documents are intended to

conform to.

* * *

(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 Responsibility Rules.

* * *

(3) When elements of the project are shown

on an engineering document only for

information or clarification and the Engineer

does not intend to accept responsibility for

the elements, the engineer shall clearly note

on the documents the extent of his

responsibility.

49 . RespondentÓs si ngle reference to the FBC was

insufficient to comply with the requirement that Respondent list

all of the federal, state, municipal and county standards alo ng

with their effective dates . Such l ack of required information

prepared by a professional engineer can constitute negligence

when , as here, the deficiencies are significant . See gen . ,

Dep Ó t. of Prof Ól Reg . Bd . of ProfÓ l Eng Órs v. John Holt, P. E. ,

Case No. l5 - 6468PL , RO at 45 and 54 (Fla. DOAH March 16, 20 16)

(finding omission of required specifi cations was negligence) ,

approved and incorporated , FEMC Case No: 2014050099 (Fla. DBPR

May 3, 2016) . T he evidence is clear and convincing Mr. Henry

omitted t he necessary information.

50 . Per rule 61G15 - 30.003 (3) , Petitioner was required to

designate on the plans what aspects he did not intend to take

responsibility for. He did not make this showing. If Respondent

wished to limit the scope of his professiona l responsibility , it

was incumbent upon him to make clear what features existed before

the renovation and what was affected by the renovation .

Petitioner clearly and convincingly showed that b y refusing to

clarify the drawings and comply with the common practice used by

professional engineers , Respondent failed to utilize due care .

As a result, RespondentÓs signed and sealed engineering documents

fail to meet acceptable engineering standards. Id. at 54

( rejecting professional engineerÓs argument that he was only

responsible for one element of engineering documents even though

he signed and sealed all the documents ) .

Count I (Electrical Design Documents)

5 1 . Petitioner alleges that Respondent was negligent by

signing and sealing materially deficient elec trical engineering

plans.

52. Rule 61G15 - 33.003 ( Design of Power Systems ) provides :

(1) Power systems convey or distribute

electrical energy. Items to be included in

the design and analysis of these systems are:

steady state and transient loads, sho rt

circuit analysis and protection (design and

analysis), load flow, voltage drop, harmonics

and protective device coordination.

(2) Electrical Engineering Documents

applicable to power systems shall at a minimum

indicate the following:

(a) Power Dist ribution Riser Diagram with

short circuit values.

(b) Conductor Ampacities (sizes) and

insulation type.

(c) Circuit interrupting devices and fault

current interrupting capability.

(d) Location and characteristics of surge

protective devices.

(e) Ma in and distribution equipment, control

devices, locations and sizes.

(f) Voltage drop calculations for the feeders

and customer - owned service conductors are

required. Additionally, the documents shall

state the reasons why the two percent limit

for feed ers and customer - owned service

conductors are not being met, if applicable.

(g) Circuitry of all outlets, equipment and

devices.

(h) Load computations.

(i) Electrical legends.

(j) Grounding and bonding.

(k) Instrumentation and control where

requ ired.

(l) Record documents applicable to power

systems shall, at a minimum, contain

information as required by Florida Building

Code.

(m) Installation and testing requirements of

required emergency and standby power systems.

53 . Rule 61G15 - 33.004 (Des ign of Lighting Systems) provides

in relevant part :

(2) Electrical Engineering documents for

lighting systems shall, at a minimum, indicate

the following:

(a) Lighting fixture performance

specifications and arrangements.

(b) Emergency lighting, egress and exit

lighting.

(c) Exit Lighting.

(d) Lighting control and circuiting.

(e) Calculated values to demonstrate

compliance with the Florida Energy Code for

Building Construction.

54 . I n support of Count I , a s noted in the findings of fact,

Petitio ner showed numerous deviations and departure s from the

requirements of the r ules governing electrical engineering

documents. These deviations or departures were not justified by

the specific circumstances of the P roject and sound professional

engineering judgment.

55 . Petitioner clearly and convincingly showed Respondent

failed to utilize due care and that he signed and sealed

electrical engineering documents that did not conform to

acceptable engineering standards.

56 . Petitioner proved by cl ear and con vincing evidence

Respondent engaged in negligence in the practice of engineering in

signing and sealing materially deficient electrical engineering

documents . See § 471.033(1)(g) , Fla. Stat. ; and Fla. Admin. Code

R. 61G15 - 19.001(4 ).

Count I I I (Plumbing De sign Documents)

57 . P etitioner alleges Respondent was negligent by signing

and sealing materially deficient plumbing engineering plans for

the Project .

58. Rule 61G15 - 34.007 ( De sign of Plumbing Systems) provides

in relevant part :

(2) Mechanical Enginee ring Documents

applicable to Plumbing Systems shall when

applicable, include but are not limited to the

following:

(a) Equipment schedules for all plumbing

fixtures, water heaters, boilers, pumps,

grease traps, septic tanks, storage tanks,

expansion tank s, compression tanks and roof

and floor drains.

(b) Floor plans, site plans, and building and

plumbing system elevations are appropriate.

(c) Potable Water isometric diagrams with

pipe sizes and total water fixture units.

(d) Sanitary riser diagrams with pipe sizes

and total sanitary waste fixture units.

(e) Storm riser diagrams with pipe sizes and

cumulative drain area square footages.

(f) Cold water, hot water, sanitary, and

storm drainage piping layouts.

(g) System isometrics and flow diagram s of

other fluids and gases.

(h) Design data for septic tank, grease

trap(s), drain field sizing, when applicable.

(i) List of ASHRAE, ASME, ASPE, ANSI and

other applicable codes, design standards and

requirements.

(j) Design shall be in accordance w ith

handicap requirements adopted by the authority

having jurisdiction.

(k) Instrumentation and Control Diagrams and

sequence of operation.

(l) All plumbing fixtures, valves, pumps,

tanks, accessories, specialties, enclosures,

and such equipment shall be described and

located on the drawings.

(m) Materials for all plumbing systems shall

be specified.

5 9 . I n support of Count I II , a s reflected in the findings

of fact, Petitioner showed several deviations and departures from

the requirements of the Res ponsibility Rules governing p lumbing

engineering documents. These deviations or departures were not

justified by the specific circumstances of the P roject and sound

professional engineering judgment.

60 . Petitioner clea rly and convincingly showed Respon dent

fail ed to utilize due care , and he signed and sealed plumbing

documents that did not conform to acceptable standards.

6 1 . Petitioner proved by cl ear and convincing evidence

Respondent engaged in negligence in the practice of engineering

in signing an d sealing materially deficient plumbing engineering

documents . See § 471.033(1)(g) , Fla. Stat.; and Fla. Admin. Code

R. 61G15 - 19.001(4 ) .

Count IV (Structural Engineering Documents)

6 2 . Petitioner alleges Respondent was negligent by signing

and sealing ma terially deficient structural engineering plans for

the Project .

63 . Rule 61G15 - 31.002 (Design of Structures - Definitions)

provides , in relevant part:

(5) Structural Engineering Documents. The

structural drawings, specifications and other

documents se tting forth the overall design and

requirements for the construction, alteration,

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

d ocuments 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

st ructure. 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 structureÓs components,

systems, materials, assemblies, and equipment.

6 4 . I n support of Count I V, a s ref lected in the findings of

fact, Petitioner showed deviations and departures from the

requirements of the r ules governing structural engineering

documents. These deviations or departures were not justified by

the specific circumstances of the P roject and sound profes sional

engineering judgment.

6 5 . Petitioner clearly and convincingly showed Respondent

failed to utilize due care , and he signed and sealed structural

engineering do cuments that did not conform to acceptable

e ngineering standards.

6 6 . Petitioner proved by cl ear and convincing evidence

Respondent engaged in negligence in the practice of engineering in

signing and sealing materially deficient structural engineering

documents . See § 471.033(1)(g) , Fla. Stat. ; an d Fla. Admin. Code

R. 61G15 - 19.001(4) .

Penalty

6 7 . Secti on 455.227(2), Florida Statutes, allows the B o ard

to impose va rious penalties for violation of the Responsibility

Rules and professional negligence , including :

When the board, or the department when there

is no board, finds any person guilty of the

grounds set forth in subsection (1) or of any

grounds set forth in the applicable practice

act, including conduct constituting a

2 8

substantial violation of subsection (1 ). . . ,

it may enter an order imposing one or more of

the following penalties: :

* * *

(b) Suspension or permanent revocation of a

license.

(c) Restriction of practice.

(d) Imposition of an administrative fine not

to exceed $5,000 for each count or separate

offense.

(e) Issuance of a reprimand.

(f) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board, or the department

when there is no board, may specify. Those

conditions may include, but are not limited

to, requiring the lice nsee to undergo

treatment, attend continuing education

courses, submit to be reexamined, work under

the supervision of another licensee, or

satisfy any terms which are reasonably

tailored to the violations found.

6 8 . R ule 61G15 - 19.004(2)(g)2.a. provides for a first - time

violation of the rules constitu ting negligence, the penalty shall

range from two years of probation and a $1 , 000.00 fine to a

$5 , 000.00 fine and revocation of license .

6 9 . M itigating circumstances are s et forth in rule 61G15 -

19.004 ( Disci plinary Guidelines; Range of Penalties; Aggravating

and Mitigating Circumstances ) , which provides in part:

(3) The board shall be entitled to deviate

from the above - mentioned guidelines upon a

showing of aggravating or mitigating

circumstances by clear an d convincing

evidence presented to the board prior to the

imposition of a final penalty. The fact that

a Hearing Officer of the Division of

Administrative Hearings may or may not have

been aware of the below mentioned aggravating

or mitigating circumstanc es prior to a

recommendation of penalty in a Recommended

Order shall not obviate the duty of the board

to consider aggravating and mitigating

circumstances brought to its attention prior

to the issuance of a Final Order.

* * *

(b) Mitigating cir cumstances; circumstances

which may justify deviating from the above

set forth disciplinary guidelines and cause

the lessening of a penalty beyond the minimum

level of discipline in the guidelines shall

include but not be limited to the following:

1. In cases of negligence, the minor nature

of the project in question and lack of danger

to the public health, safety and welfare

resulting from the licenseeÓs misfeasance.

2. Lack of previous disciplinary history in

this or any other jurisdiction wherein the

licensee practices his profession.

3. Restitution of any damages suffered by

the licenseeÓs client.

4. The licenseeÓs professional standing

among his peers including continuing

education.

5. Steps taken by the licensee or his firm

to insure the non - occurrence of similar

violations in the future.

70 . The following are relevant mitigating factors:

(1) Mr. Henry took over the Project after the original EORÓs

initial plans had been rejected by the County and FMO; (2) there

was no evidence Respondent has previous disciplinary history ;

(3) the Project did not involve major c hanges to the existing

building; and (4) there was no testimony that the property owners

had complaints regarding Mr. HenryÓs services or that the public

suffered any damages based on Mr. Henry Ós negligence . P ursuant

to the circumstances delineated in the rule under rule 61G15 -

19.004(3) (b)1., 2. and 3. , a downward deviation from the range of

penalties in the guidelines is warranted.

7 1 . Section 455.227(3) allows FEMC to assess cost s related

to the investigation and prosecution of the case , excluding costs

associated with an attorneyÓs time. Although these cost s are

appropriately taxed because the investigati on was necessary to

verify the McGuire C omplaint and prosecute Respondent, t he

consultation and report of FEMC Consultant Gerald Zadi koff, P.E. ,

is duplicative of Mr. JefferyÓs report . Thus, an award of the

inve stigative costs less the amount paid to Mr. Zadikoff is

approp riate and warranted.

RECOMMENDATION

Based on the foregoin g Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Florida Board of Professional Engineers:

1 . Finding Earl E. Henry engaged in negligence in the

practice of engineering, in violation of section 471.033(1)(g) ,

Florida Statutes, and Florida Administrative Code Rule 61G15 -

19.001(4);

2 . I mposing a two - year probation ; and

3 . Awarding costs related to the investigation and

prosecution of this case as described in this Recommended Order .

DONE AND ENTERED this 9 t h day of January , 201 8 , in

Tallahassee, Leon County, Florida.

S

HETAL DESAI

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 48 8 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9 th day of January , 2018 .

ENDNOTE S

1 / Except as otherwise indicated, references to all other

statutes and administrative rules a re to the versions in effect

at the time the final engineering d ocuments were signed and

sealed in February and March 2015 .

2 / The parties applied the 2010 Florida Building Code to the

plans at issue in this case.

3 / Although FEMC obtained written opin ions from other consultants

as part of its investigation, only the testimony and reports of

Mr. Ooten and Mr. Jeffery w ere considered in reaching the factual

findings. Mr. Henry did not dispute the opinions of Mr. Ooten

and Mr. Jeffery; in fact, he admi red them. He described

Mr. Ooten as Ð100% correctÑ as to his knowledge of the applicable

statutes, code requirements and professional engineering rules .

COPIES FURNISHED:

Earl E. Henry, P.E.

6880 52nd Street North

Pinellas Park, Florida 33781

John J efferson Rimes III, Esquire

Florida Engineers Management Corporation

Suite B - 112

2639 North Monroe Street

Tallahassee, Florida 32303 - 5268

(eServed)

Zana Raybon, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulations

2639 North Monroe Street, Suite b - 112

Tallahassee, Florida 32303 - 5268

(eServed)

Lawrence D. Harris, Esquire

O ffice of the Attorney General

The Capital, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Jason M aine, Ge neral Counsel

Department of Business and

Professional Regulations

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written excep tions 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.