99-002817 Department Of Business And Professional Regulation, Florida Engineers Management Corporation vs. William J. Payne, P.E. Status: Closed Recommended Order on Tuesday, February 8, 2000.

Summary: Respondent engaged in negligence in the practice of engineering based on faulty drawings and unsound structural design of a building.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, FLORIDA )

ENGINEERS MANAGEMENT CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 99-2817

)

WILLIAM J. PAYNE, P.E., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A formal hearing in this matter was held before the Division

of Administrative Hearings by Daniel M. Kilbride, Administrative

Law Judge, on November 4, 1999, in Tallahassee, Florida, and in

Orlando, Florida, by teleconference.

APPEARANCES

For Petitioner: Natalie A. Lowe, Esquire

Florida Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301-0750

For Respondent: William J. Payne, P. E.

7702 Indian Ridge Trial, North

Kissimmee, Florida 34747

STATEMENT OF THE ISSUES

Whether Respondent engaged in negligence in the practice of

engineering based on the structural engineering contained on a

set of permit drawings, in violation of Section 471.033(1)(g),

Florida Statutes.

PRELIMINARY STATEMENT

On May 27, 1999, Petitioner filed an Administrative

Complaint charging Respondent with a three-count violation of

Chapter 471, Florida Statutes. Respondent denied the allegations

and requested a formal hearing on June 24, 1999. On the same

date, this matter was referred to the Division of Administrative

Hearings. This matter was set for hearing and discovery ensued.

On September 21, 1999, Petitioner filed a Motion to Amend

Administrative Complaint. Said motion was granted by Order,

dated September 27, 1999, and this matter proceeded to hearing as

scheduled.

At hearing, Respondent elected to proceed pro se .

Petitioner called three witnesses and offered six exhibits, five

of which were admitted in evidence. Respondent testified in his

own behalf and offered three exhibits, none of which were

admitted in evidence. Respondent's Exhibits B and C were

demonstrative only and were not retained.

The Transcript of the hearing was filed on December 22,

1999. The parties were given ten days after the filing of the

Transcript in which to file proposed findings of fact and

conclusions of law. On December 23, 1999, Counsel for Petitioner

filed a motion for extension of time to file proposed orders.

Said motion was granted and the parties were given until

January 12, 2000, to file their proposals. Petitioner filed its

Proposed Recommended Order on January 10, 2000. Respondent has

not filed a proposed recommended order as of the filing of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of engineering pursuant to Section 20.165, Chapter

455 and Chapter 471, Florida Statutes.

2. Respondent is, and has been at all times material

hereto, a licensed engineer in the State of Florida, having been

issued license number PE 51230.

3. In December 1998, Respondent was the engineer of record

in the construction of a project hereinafter referred to as the

Berlitz Language Center in Orange County, Florida.

4. On or about December 9, 1998, Respondent signed and

sealed a set of permit drawings for the Berlitz Language Center.

5. Respondent then submitted the drawings to the Orange

County Building Department for permitting.

6. Rami Chami, a structur al plans examiner with the County,

reviewed the first submittal. Chami has a background in

structural engineering. He is also a state-certified plans

examiner, a state-certified building inspector and a masonry

specialist.

7. The proposed Berlitz Langu age Center is a two-story

building constructed of insulated panels called AFM R-Control

Structural Building Panels. The panels consist of a layer of

foam-type material between two layers of plywood. The panels

were used to provide a structural system that included the

exterior walls, the exterior partitions, an elevated second

floor, and a roof system.

8. Along with the plans Respondent submitted a compliance

report that outlined use limitations placed on the panels. The

manufacturer of the panels had run extensive load tests on the

panels and as a result of these tests had recommended loads and

spans.

9. Chami became concerned that the panels had not been

tested for the loading conditions placed upon them by

Respondent's design. He contacted the panel manufacturer and

sent them a copy of the Respondent's plans.

10. By facsimile dated January 11, 1999, the AFM

Corporation recommended against using the panels as shown on the

drawings because the panels had not been tested using that method

of construction.

11. The Orange County Building Department then hired an

independent structural engineer, Ted Holz, P.E., to review the

drawings and to provide comments to the Department.

12. Ted Holz, P.E., is a licensed structural engineer. He

also holds a building contractor's license and is a structural

masonry inspector.

13. In the opinion of Mr. Holz, Respondent had not

performed an appropriate wind analysis. He found the plans rife

with questions, irregularities, and conflicts. He also confirmed

that the panels were being used in ways that would exceed the

manufacturer's published data.

14. In his opinion, the structure failed to comply with the

local building code in regard to wind loads and live loads.

15. Upon receipt of Holz' report, Chami again cont acted the

AFM Corporation and provided them with sketches of the proposed

structure. By facsimile dated February 2, 1999, the AFM

Corporation again recommended against the method of construction

used by Respondent.

16. Chami rejected the plans because Re spondent's intended

use of the panels in the Berlitz project was not acceptable.

17. James O. Power, P.E., is a structural engineer who has

been licensed in the State of Florida since 1947. He has over 47

years of structural engineering experience. Since 1980, he has

been a consultant to the Department of Business and Professional

Regulation in various professions including engineering,

architecture, and contractors. Mr. Power was accepted as an

expert in structural engineering.

18. The manufacturer of the panels has performed extensive

load tests on the panels and as a result of these tests has

recommended load and spans. However, the conditions of use must

match the test conditions.

19. The most significant limitation on the test report is

that the panels must be installed in conformance with the

manufacturer's recommendations.

20. In a number of cases, as shown on the drawings, the

span and the load exceed those in the manufacturer's drawings as

well as those in the Southern Building Code Congress

International (SBCCI) test report.

21. There are two additional restrictive requirements. The

first states that panels should not exceed ten feet in height.

The majority of the panels on the Respondent's drawings are 12

feet high.

22. A second restrict ion requires a specially engineered

header support beam to be provided for all openings exceeding

four feet in width. There was no detail of any header or support

for the 6-foot, 8-inch opening in the front door on Respondent's

drawings.

23. Respondent's use of the panels was contrary to the

manufacturer's recommendations and did not comport with the

limitations set forth in SBCCI Report No. 9251.

24. Respondent's drawings are deficient in that they are

incomplete, ambiguous, and inconsistent.

25. On sh eet EB01, the space under the Rear Stairway is

shown to be enclosed. This is contrary to what is shown on

sheets EB03 and EB23.

26. Sheet EB02 shows what appears to be a vertical support

located below the interface of the Left Stair with the upper

landing. This is contrary to what is shown on EB23.

27. The Floor Panel layout on sheet EB22 fails to provide

for the opening in the second floor necessitated by the Rear

Stairway.

28. The Roof Panel layout on sheet EB22 fails to address

the extension of the roof over the left stairway as shown on

EB11.

29. The detail of the floor spline found at EB11 calls for

an AFM Wood I-Beam but this is not permitted by Table No. 3A of

the SBCCI Report No. 9251 for a 5 1/2-inch core. Furthermore,

this detail is in conflict with the note on EB27 which refers to

Design Chart No. 3. Design Chart No. 3 deals with dimensional

lumber beam splines rather than I-beam splines.

30. Wall Panel No. 3, found on sheet EB18, is inconsistent

with what is found on EB03. No support is indicated for Wall

Unit No. 13 or for the left stairway.

31. No details were provided regarding the construction of

the rear stairway or the members supporting it.

32. The exterior wall of the left stairway extends upward

from 12 feet, 8 inches to 24 feet without transverse support at

the end joints and without any support to resist wind loads

except for what might be provided by the unspecified stair

construction.

33. The location of supporting walls found on EB03 is such

that the span of the second floor panels, a maximum of

approximately 27 feet, greatly exceeds the 12 feet permitted by

Design Chart No. 3 in SBCCI Report No. 9251.

34. The location of supporting walls found on EB07 is such

that the span of the roof panels, a maximum of approximately 52

feet greatly exceeds the 20 feet permitted by Design Chart No. 3

in SBCCI Report No. 9251.

35. On sheet EB07, connections between roof and floor

panels, which are necessary to provide transverse resistance to

wind loads, have not been specified for the front and rear walls.

36. On sheets EB18, EB19, EB20, and EB21, wall openings and

panel widths have not been coordinated to avoid the situation of

a wall opening extending through a vertical joint into the

adjoining panel.

37. Sheets EB18, EB19, EB20 and EB21 fail to specify

details of headers and supporting posts.

38. Wall panels No. 2, No. 3, and No. 4 lack transverse

support at panel ends and do not match the test load conditions

on which Load Design Chart No. 2 in the SBCCI Report No. 9251 is

based.

39. Wall Panel No. 5 encroaches on the opening in the

second floor necessitated by the rear stairway.

40. At the left side of the rear wall, there is a 4-foot

vertical gap between the gap between the top of Wall Panel No. 6,

shown on EB19, and the bottom of Wall Panel No. 19, shown on

EB21.

41. No support is indicated for Wall Unit No. 30 in Wall

Panel No. 9.

42. No support is indicated for Wall Unit No. 31 in Wall

Unit No. 13.

43. The designation of Wall Unit No. 31 in Wall Panel No.

30 is the same as hat in Wall Panel No. 13 but the dimensions are

different.

44. No support has been indicated for Wall Unit No. 31 in

Wall Panel No. 30.

45. Engineering plans must contain sufficient detail so

that a competent contractor could reasonably expect to produce a

safe building. Respondent's plans do not contain this detail.

46. An engineer must comply with the manufacturer's

recommendations unless he can justify the deviations. Respondent

has not complied with the manufacturer's recommendations and has

not justified his deviation.

47. Respondent's structural engineering experience is

limited to his use of structural insulated panels.

48. Respondent's explanation for the deficiencies in his

plans and drawings is not credible.

49. Respondent's engineering pra ctice in regard to the

Berlitz Language Center does not meet the standard of due care

required for professional engineers.

50. Respondent was negligent in the practice of

engineering.

CONCLUSIONS OF LAW

51. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

52. Petitioner is charged with providing administrative,

investigative, and prosecutorial services to the Board of

Professional Engineers pursuant to Section 471.038(4), Florida

Statutes.

53. Respondent is a licensed professional engineer in the

State of Florida and subject to discipline by the Board of

Professional Engineers.

54. Pursuant to Section 471.033(3), Florida Statutes (Supp.

1998), the Board of Professional Engineers is empowered to

revoke, suspend or otherwise discipline the license of a

professional engineer for violations of Section 471.033(1)(g),

Florida Statutes, for negligence in the practice of engineering.

55. Discipl inary licensing proceedings are penal in nature.

State ex rel. Vining v. Florida Real Estate Commission , 281

So. 2d 487 (Fla. 1973). In this discipline licensing proceeding,

Petitioner must prove the alleged violations of Section

471.033(1)(g), Florida Statutes, by clear and convincing

evidence. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne, Stern & Company ,

670 So. 2d 932 (Fla. 1996).

56. The evidence is clear and convincing that Respondent's

drawings are deficient in that they are incomplete, ambiguous,

and inconsistent.

57. Respondent's engineering in regard to the stairs was

below acceptable engineering standards.

58. Respondent's use of the AFM R-Control Structural

Building Panels was contrary to the manufacturer's

recommendations.

59. The evidence was clear and convincing that Respondent

was negligent in the practice of engineering.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Professional Engineers enter a

Final Order finding the Respondent guilty of violating Section

471.033(1)(g), Florida Statutes, engaging in negligence in the

practice of engineering.

Pursuant to the Board's disciplinary guidelines found at

Rule 61G15-19.004, Florida Administrative Code, it is recommended

that Respondent receive a written reprimand, pay an

administrative fine of $4,000.00, and be placed on probation for

a period of two years with such conditions that the Board deems

appropriate.

DONE AN D ENTERED this 8th day of February, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of February, 2000.

COPIES FURNISHED:

Natalie A. Lowe, Esquire

Florida Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301-0750

William J. Payne, P.E.

7702 Indian Ridge Trail, North

Kissimmee, Florida 34747

Dennis Barton, Executive Director

Florida Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301-0750

Barbara D. Auger, General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the final order in this case.