ANNA MARIA – The Anna Maria City Commission seeks an opinion from the Florida Attorney General’s office as to whether the same company can serve as project engineer and project inspector on the same construction project.
On Thursday, Oct. 8, the city commission unanimously authorized City Attorney Becky Vose to seek the opinion by passing City Resolution R20-765.
“What brought this up was the city has had a company where they have common owners of the company, but one is an inspection company and one is a design company and they’re inspecting their own work, basically,” Vose told the commission.
“To make it even more dramatic, they have the same name – except one’s the inspection company and one’s the engineering company. They have the same domain name on their email and they have the same physical address for their company. It’s the same company,” Vose said.
In reference to existing state law, Vose said, “The statute would appear to allow them to do this, which is an absurd result I believe, and I’m asking the attorney general to opine on this. If in fact the attorney general opines that no, they can do it, then I would suggest that we ask our lobbyist to get somebody to sponsor a bill to clear this up so it can’t happen, because this is a big concern for safety purposes. You’ve got to inspect buildings while they’re being constructed and they should not be inspected by the same people who designed them.”
Vose said she and the mayor are not allowed to seek such an opinion from the attorney general’s office, but the city commission can.
The packet for last Thursday’s commission meeting included a copy of the memo Vose will send to Florida Attorney General Ashley Moody.
“Does Section 553.791(2)(a), Florida Statutes, allow a person employed by a company that provides private provider building code inspections to provide the building code inspection services for a building being constructed that was designed by a different person at a different engineering company, if both the engineering company and the inspection company have the same licensed professional engineer as their respective qualifying agents?” Vose’s memo asks.
Regarding the facts and circumstances pertinent to this specific matter, Vose’s memo says, “The plans for two homes that were signed and sealed by Jeff Vogel of Apex Consulting Engineers were submitted to the city of Anna Maria for review. The private provider inspection services for the construction were to be performed by Jeff Vogel of Apex Inspection Group. The addresses and the Internet domain name for Apex Consulting Engineers and Apex Inspection Group are identical. In addition, Jeffrey Vogel is the qualifying agent for both Apex Consulting Engineers and for Apex Inspection Group.
“When Mr. Vogel was told that he could not inspect the construction of a building the plans for which had been signed and sealed by him, the same plans were resubmitted with Derek
Newcomers of Apex Consulting Engineers signing and sealing the plans. There were issues during the construction of the two homes when footers were discovered by the city to be two feet shallower than called for by the original plans. The designer – Derek Newcomers of Apex Consulting Engineers – then created a revised detail for the depth of the footers as built, but with no justification for the change,” Vose’s memo says.
“The revised detail was not approved by the city due to lack of justification for the change and concern for the efficacy of the revised footer depth. Concrete for the footers was poured at the shallower depth, and the private provider inspector – Jeff Vogel of Apex Inspection Group –passed the inspection of the poured footers even though the footers were not in conformance with the approved plans,” the memo says.
Vose’s memo does not specify the location or addresses of the two homes in question, nor was that information provided during Thursday’s meeting.
“It is obvious the legislature desired to prevent a professional engineer or architect from inspecting his or her own work or the work of someone else in his or her firm as a private provider. That intent certainly makes sense since the inspections of plans and construction is crucial to protect the safety and welfare of the public,” Vose’s memo says. “However, a literal interpretation of the statute would appear to allow a professional engineer or architect to form two related firms, one that did design work, and the other that did inspection services and effectively subvert the intent of the statute.”
Mayor Dan Murphy said, “We’re asking if it’s legal or not? It’s the concept we’re asking about, not the particular company. If we don’t do this, we’re going to continue to have the issue. If we get an unfavorable ruling, we’re right back where we are today. There’s nothing to lose here, there’s only something to gain to ensure that we’re having a quality project done in the field of construction.”
Vose said, “If in fact the attorney general says you obviously can’t do that stuff then that’s enough for us to hang our hat on. We don’t have to accept them as inspector.”
Commissioner Mark Short asked Vose if the city has the ability to have its own ordinance with respect to conflicts of interest addressing a situation like this.
“That would be wonderful except that subject is preempted to the state,” Vose responded.
