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Re: BORPELS and residential room additions

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The California Board of Registration (BORPELS) has a proven record of
imposing abusive penalties in residential engineering disciplinary actions.

Earlier this year, a reviewing North L.A. County Superior Court, while
upholding the BORPELS finding of negligence and incompetence, ruled that
their penalty of license revocation was "a manifest abuse of discretion" and
set it aside in  favor of suspension, restitution, and probation.   The
following is excerpted from the court's 5-page ruling in Petrovsky v. Board
of Registration (BS027266):

"Petitioner is a licensed civil engineer. In 1985, petitioner was working on
a complex project involving building a home on a steep hillside in Malibu,
California. After several unsuccessful attempts to obtain a building permit
for the project, the plan check office in Malibu forwarded a complaint to
the State Board regarding the quality of the calculations and drawings ("the
plans") submitted to it by Petitioner. The original accusation was filed by
the Board   on July 20,1989. A subsequent amendment was filed approximately
two years later.
....
"On May 3,1993, the Administrative Law Judge who presided at the hearing
found that Petitioner was guilty of both negligence and incompetence in his
practice and recommended that Petitioner's license be suspended for 20 days;
that he pay 2,500 dollars in restitution to his clients; that he be placed
on probation for three years during which time he was to complete six units
of continuing education and comply with any reporting requirements
reasonably imposed by the Board; and that he notify all current clients and
employers of findings of the hearing and the discipline imposed.

"On June 4,1993, the Board set aside the proposed decision of the ALJ and
exercised its authority to decide the matter itself.

"on Dec. 21,1993, The Board set aside the ALJ's proposed penalty and instead
revoked Petitioner's license and required restitution as a condition for
reinstatement.
.....
"The weight of the evidence supports the finding that there were numerous
problems with the plans (both the drawings and the calculations) that
indicated either incompetence or negligence on the part of the person who
prepared them."

(The civil engineer attributed preparation of the plans to a subordinate
employee but it was found that he had stamped and signed those plans without
adequate review.)

"Incompetence is a general absence of qualification, ability or fitness to
perform a preccribed duty or function.(Pollak v. Kinder (1978) 85 Cal.App.3d
833) This is to be distinguished from negligence which is the neglect or
omission in performing the duty. (Id.)

"The Board Abused its Discretion in Revoking Petitioner's License.

"This penalty is a patent abuse of discretion. The court can only substitute
its judgment on the penalty for that of the administrative agency if there
has been a manifest abuse of discretion on the part of the agency.

"Respondent (Board) clearly adopted the findings but not the penalty of the
hearing officer.  And, in the light of all the findings this court
determines that the penalty, when considered with the 12 years of delay in
the rendering of this decision, an abuse of discretion. Petitioner has
engaged in a single instance of negligent behavior which resulted from his
failure to properly supervise his employees. He has never had another
licensing problem. To suggest that his license be terminated for this act is
without precedent and inherently unreasonable.

"The penalty is set aside and the decision of the hearing officer reinstated"

In contrast, the situation given below describes no apparent dereliction by
the engineer. The building officials are supportive, unlike in the above.
Revocation would be even more abusive. Who's responsible? 
 Procedurally, no Board Member should yet know of this case.(They stay out
until the accused person agrees to a negotiated "confession" and penalty, or
until after the ALJ submits a finding and proposes a penalty after a
trial-like hearing.)  Thus at this point the show is run by Board staff,
their technical  consultant, and the Attorney General's prosecuting Deputy.
What limits do you suppose bear on them? What motivations and rewards? 

Chuck Greenlaw, SE  Sacramento, CA
    
At 11:20 PM 9/11/97 -0400, you wrote:
>     I have been asked by a civil engineer in another county to comment on
>his structural engineering for a 500 SQ. FT. room addition he calc'ed in
>1987.
>     There was a complaint ( but no failure type problem ) and BORPELS asked
>one of their technical consultants, who also does litigation work, to
>comment. The expert SE said the civil engineer should have investigated the
>site, tested the concrete, obtained a soil report, as well as performed
>structural observation , and since he did not the civil engineer is ( 1997 )
>incompetent and BORPELS has offered to settle by allowing the civil engineer
>to give up his license for 4 years. 
>     It was a calc and sketch job for  $450.00 and the were 37 pages of calcs
>and sketches.
>     I have probably plan checked 3000 room additions, and these calcs were
>above average . I am shocked by what the BORPELS consultant recommends. If i
>did everything he is criticising i would have to charge $3500.00 plus another
>$2000.00 for a soil report and $750. for a concrete testing lab, all for a
>calc and sketch job on a 500 sq. ft. room addition!
      Tom Harris , SE
>     Thousand Oaks, CA