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RE: Engineering violations revisited

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Senator to DEA Head-

"You seizures have dropped.  Funding may need to the DEA may need to be
cut."

"Fines" have become the unseen tax system in the US for agencies.  I'm more
than just a little worried with the Corporation Commission has armed
enforcement agents (untrained) who are checking trucks for violations on the
roadside.  Best was the California where there is some concern on your car
being "impounded" if the smog controls were not working properly in
roadblock tests.

So yeah, I can see the PE boards wanting to get more money from Fines.

Arvel



-----Original Message-----
From: Bill Polhemus [mailto:bill(--nospam--at)polhemus.cc]
Sent: Thursday, July 28, 2005 12:24 PM
To: seaint(--nospam--at)seaint.org
Subject: Re: Engineering violations revisited


> I'm not surprised that they are telling only the part of the story that
> makes them look like they are doing their job.  But if they don't actually
> collect the fines or are constantly being overturned on appeal, how
> effective are they?

To be fair, none of the newsletters from P.E. boards that I receive have
anything but the name of the offender, the nature of the offense and the
nature of the penalty.

I think it would be quite "uncomfortable" to belabor things any further
than that.

However, generally speaking I'm sure that some information regarding
assessed fines vs. collections might be appropriate. I'm not sure of the
legal stance of this kind of thing; after all, the fines are being
assessed by a board that is in essence part of the Executive branch of
state government, and I don't know regarding any judicial review.

Perhaps there are "administrative law" courts to which the fines can be
appealed, or to which the Board, in turn, can appeal in case the fines are
not paid?

Are there any SEAINT listmembers who've had experience with this
(hopefully not your own) or who are attorneys familiar with such matters?

This much I can say: Just like most bureaucratic constructions, P.E.
Boards over the last decade or so have been "feeling their oats" and come
to realize the benefits (to them) of revenues arising from fines. Almost
at the same instant, many states with which I'm familiar SUDDENLY hired
"compliance officers" who in turn began to hire staff including
investigators, and they've become a sort of "gestapo" in some instances.

I'm probably being overly-dramatic (that's never happened before,
however), so bear with me. It just seems like many P.E.s at least in Texas
have fallen victim to "speed traps" set up by the P.E. Board, and
vigorously enforced by the compliance office.

Two examples of this are (1) the state Department of Insurance Windstorm
Building Code program, and (2) the P.E. Board's own Firm Registration
requirement.

In the latter instance, since many engineers running their firms are
typically not keeping up with what's going on, a LOT of them were caught
unawares when they began receiving notices that they were being assessed
penalties for not registering their firms. I'm not talking about those
that registered, then failed to remember to send in their annual dues
subsequently, but those that really hadn't been paying attention and
didn't realize they had to do this.

The company for which I worked at the time Texas' Board adopted this rule
was a pretty good-sized civil engineering firm, and when I first informed
my then-boss about it, he didn't believe me and sort of waved it off.

Then they started getting the dun notices. Then finally, they had to pay a
pretty stiff fine on top of their initial registration. Now, in that case
they can't say no one warned them, but I know of many other cases
(especially with the really small firms with only two-ten employees) where
they just weren't paying attention and got zapped.

Now, I'm not saying that the P.E. Board was playing anyone false, but it
wouldn't surprise me to learn that they had probably counted on not only
the new revenue from the Firm Registration fees, but on a bunch of people
not initially complying and having to cough up a bundle in fines. Sort of
like when a banker-friend of mine admitted candidly how much of their
revenue is made up of NSF charges. They actually look forward to people
screwing up.

The former instance, the TDI Windstorm Insurance program, has been much
more nefarious. I should say in advance here, that I don't believe it was
the TDI that came up with this convenient situation, but rather the P.E.
Board.

The Texas Department of Insurance was required by the legislature to come
up with a program of cooperative low-(relatively)cost insurance against
damage from wind storms, similar to the Federal Flood Insurance program.

People in hurricane damage-prone areas of the state found it difficult if
not impossible to obtain coverage for windstorm damage through private
insurers unless they purchased a very expensive policy rider. The primary
reason for this was that the private insurers realized there is no
statewide building code in Texas, and essentially no enforcement in those
incorporated cities where the building codes did exist.

So the TDI came up with the program, and along with it wrote and published
a sort of cobbled-together (in my opinion) "wind storm building code." The
requirement was that the builder had to build according to that code in
order for that home to be eligible for the program. To assure compliance,
the code required that a "registered" inspector perform periodic and final
inspection of the home, and sign a standard form attesting to that fact.

TDI "preferred" that the registered inspectors be licensed professional
engineers. Others could apply but producing a P.E. license guaranteed fast
addition to the program.

Well, lots of folks, particularly retired engineers, began to sign up as
registered inspectors, looking at this as a great source of supplemental
income. I make this remark because it seems like everywhere I looked,
that's who was doing this work; in fact I never saw any "mainstream" firm
listed in the roster of inspectors.

Anyway, after a few months the P.E. Board compliance office went to work,
following up inspections and perusing the signed certification forms. They
found instance after instance where inspectors had signed off on homes
that did NOT meet the TDI code criteria.

Now, I must say here that I'm sure many, if not most, of these were
engineer/inspectors who just did a lousy job. But I know from my own
observation that many of them were simply differences of opinion as to
what constituted a "code violation"--stemming in great deal from the fact
that the code was so poorly written, and really should never have been
drafted nor implemented (the then-new IRC and its high-wind criteria, or
even the SBC, would have been more than sufficient).

But from what I've seen of the record of compliance proceedings from the
last several years--available on the P.E. Board's website at
http://www.tbpe.tx.state.us--the Board has reaped a "windfall" (pun
intended) from the TDI Windstorm Insurance program as a result.

It's almost as though they were sitting back in the shadows, waiting for
the prey to come into the trap, then swooped out to grab up all these
delicious fines and penalties.

I've tried to have an open mind about this--but one result is that even
though it would have been a very good addition to the services I offered,
I never registered with TDI. It just looked like a losing proposition if
you happened to miss something. It looked like the Board was in it for
what they could get.

Perhaps I'm wrong. But my cynicism remains.


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