00-002614 Florida Engineers Management Corporation vs. Mark Craig Fetherman, P.E. Status: Closed Recommended Order on Thursday, February 1, 2001.

Summary: Respondent charged with negligently practicing engineering found not guilty of negligence, as alleged in the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 00-2614

)

MARK CRAIG FETHERMAN, P.E., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal hearing in this case on

December 7 and 8, 2000, in Orlando, Florida.

APPEARANCES

For Petitioner: Do uglas D. Sunshine, Esquire

Florida Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301

For Respondent: Minerva Higgins, Esquire

1770 Fowler Drive

Merritt Island, Florida 32952

STATEMENT OF THE ISSUE

Whether the license of Respondent, Mark Craig Fetherman,

P.E., should be disciplined for negligence in the practice of

engineering, in violation of Section 471.033(1)(g), Florida

Statutes, as more specifically alleged in the Administrative

Complaint filed in this case on May 27, 2000.

PRELIMINARY STATEMENT

On May 27, 2000, Petitioner, Florida Engineers Management

Corporation, filed an Administrative Complaint alleging in five

counts that Respondent, Mark Craig Fetherman, P.E., violated

Section 471.033(1)(g), Florida Statutes, by negligently

practicing engineering. By letter dated June 20, 2000,

Respondent disputed the allegations in the Administrative

Complaint and requested a formal hearing. The matter was

referred to the Division of Administrative Hearings on June 27,

2000. An Initial Order was forwarded to the parties on June 30,

2000.

On July 28, 2000, a Notice of Hearing was entered setting

the final hearing on November 7, 2000, in Orlando, Florida. On

Respondent's Motion, the case was rescheduled for final hearing

on December 7 and 8, 2000.

At the final hearing, Petitioner presented two witnesses,

one of whom, Wilbur T. Yaxley, P.E., was accepted as an expert

witness. Petitioner offered five exhibits, all of which were

admitted into evidence. Respondent presented three witnesses,

including himself, and offered five exhibits. All were admitted

into evidence.

At the close of the evidence, the parties were advised of

their right to submit proposed recommended orders, and any

memorandum of law they wished to present. The parties requested

and received 25 days from the filing of the transcript to submit

proposed recommended orders. The Transcript of the proceedings

was filed on January 3, 2001.

Respondent submitted Proposed Findings of Fact and

Conclusions of Law on January 22, 2000; Petitioner submitted

Petitioner's Proposed Recommended Order on January 26, 2000.

Both were thoughtfully considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of facts are made.

1. Petitioner, Florida Engineers Management Corporation,

provides prosecutorial services to the Board of Professional

Engineers as authorized by Section 471.038(4), Florida Statutes.

The Board of Professional Engineers is charged with regulating

the practice of engineering pursuant to Chapters 455 and 471,

Florida Statutes.

2. Respondent, Mark Craig Fetherman, P.E., is a licensed

professional engineer holding License No. PE40116. Prior to the

instant case, he has not been subject to disciplinary action.

3. Respondent has a bachelor's degree in physics and

mechanical engineering and a master's degree in management

information systems.

4. Respondent has developed software to calculate

windloads for wood and metal trusses. He operates his own

company and offers engineering services to others which include

performing load calculations for residential homes.

5. Petitioner's expert witness, Wilbur T. Yaxley, P.E., is

a civil engineer primarily concerned with building and

structure-type work. He has approximately 24 years' engineering

experience and has done consulting and forensic work since 1993.

This is his first case involving light-gauge metal roof trusses.

He has never designed a roof truss. He has never been involved

in the manufacture of light-gauge metal trusses.

6. Petitioner's expert witness testified that light-gauge

steel trusses are a fairly new process. Light-gauge steel (16,

18, 20 gauge) has become a major structural building material in

the last five years. Unlike the wood truss industry, there

isn't much published information on light-gauge metal trusses,

and what information that is available is not approved or

accepted by the Standards Building Code. The Standards Building

Code refers to American Iron and Steel Institute (AISI)

documentation: "The design of structural members cold-formed

from carbon or low alloy steel shall conform to AISI

Specifications . . . ."

7. While Mr. Yaxley is familiar with "finite element

analysis" (using computer software to analyze a system or

component to see how it reacts under certain loading), he

personally does not do finite element analysis. He has not

analyzed the truss system in this case as a whole.

8. Respondent had contracted with Marjorie and Art

Schiavone to design a residence which included a connected

airplane hanger. In addition, Respondent was to "procure steel

roof trusses for the residence," specifically, the scope of work

included materials, truss manufacture and delivery, and

modifications needed due for foundation and/or wall

configurations.

9. Art Schiavone (hereinafter "Schiavone") accepted

Respondent's plans without objection.

10. Schiavone, who had little building experience, as

property owner acted as his own general contractor.

11. Petitioner's expert testified that "Schiavone really

thought Mr. Fetherman was supervising his construction."

Respondent testified that he was not supervising construction

and Petitioner's expert agreed that was not Respondent's role.

12. There was a great deal of personal conflict bet ween

Schiavone and Respondent. Schiavone prepared and dated his

Complaint to the Board of Professional Engineers on November 16,

1999. He then showed the Complaint to Respondent's partner "to

get satisfaction out of Mr. Fetherman."

13. Respondent left th e job in mid-December. The

Complaint was received by the Board of Professional Engineers on

December 28, 1999. Schiavone told Respondent's partner that he

would withdraw the Complaint if Respondent would continue as

engineer on the job.

14. There is conf lict in the testimony of Schiavone and

Respondent. I find the testimony of Respondent to be more

credible.

15. Some of the roof (and hanger) trusses were damaged

when they arrived at the job site. The repair process involved

removing the damaged member and replacing it with a new piece of

metal. Holes had to be redrilled and screws were replaced.

16. Respondent was not present when some of the trusses

were repaired. Similarly, Respondent was not present when some

of the roof trusses were modified.

17. Schiavone modified the trusses without the benefit of

shop drawings after Respondent left the job.

18. Lisa Connelly, Plans Examiner for the Marion County

Building Department, testified that Respondent came to her

office and told her that Schiavone had altered the trusses

without Respondent's supervision and that Respondent was going

to remove himself from the job due to deviations in engineering,

in that the trusses were not what Respondent had engineered.

19. Respondent noted 13 construction items which had not

been done correctly, at least one-half of which would create

problems with the trusses being installed properly.

20. When Schiavone poured the wall lintel, he failed to

install connector straps as per plans. Respondent had provided

Schiavone detailed drawings showing the location of two

connector straps per truss heel. In most instances, as built,

there was only one connector strap per truss heel and it was not

properly located to fit into the truss heel gusset plate.

21. Petitioner's expert found from 10 to 18 screws in most

truss heel gusset plates. Respondent had photograph

enlargements (taken for another purpose) which showed 18 screws

in each truss heel gusset plate in the particular photographs.

These photographs were taken to show transportation damage and

would have showed the condition of the trusses before any repair

or modifications.

22. The typical wall cross-section drawing shows two

connector straps with seven screws per strap.

23. Had there been two connector straps per location, ha d

the connector straps been properly located, and had they been

installed into the truss heel connection gusset plate as per

plans, there would have been 32 screws per truss heel, which

would have exceeded design criteria.

24. It was not Respondent's respo nsibility to ensure that

Schiavone built the structure according to the plans.

25. Respondent's General Summary Sheet specifies 25

self-drilling screws at the heel connection of the hanger truss.

Petitioner's expert opines that 54 No. 10 self-drilling screws

are needed.

26. Respondent testified that his software calculates the

whole truss system, not just the heel connection standing alone,

and that instead of shear, the heel connection would be

subjected to rotation stress.

27. Respondent calculated va rying windloads, safety

factors, and the number of screws required for varying windloads

and determined that 25 screws would be needed for 120 mph

windloads with a 3.5 safety factor; 54 screws with the same

general safety factor would allow a 300-320 mph windload.

28. Petitioner's expert opines that both the hanger truss

heel connection and the scissors truss would require a heavier

gusset plate. He did not, however, calculate forces and loads

on the entire truss system. He simply ran calculations on a

normal pin-connection truss design.

29. Respondent determined, using his software, that a

20-gauge piece of steel is satisfactory for the gusset plate.

30. Petitioner's expert opines that in the foundation

plan, the thickened portion of foundation slab would be for an

interior load-bearing wall.

31. Petitioner's expert acknowledges that he is not sure

what the loads would be on the interior load-bearing wall. He

does know that the bearing point on some of the trusses and the

interior load-bearing wall would not match up by 42 inches.

But, he testified that he did not know whether this would make a

difference or not.

32. The interior load-bearing wall was constructed after

the trusses were installed and after Respondent left the job.

33. There is a jog show n in the floor plan for the

interior load-bearing wall which is inconsistent with the

foundation plan.

34. Respondent testified that the plans were as he

intended. He designed the interior load-bearing wall footer to

run straight because its easier for the individuals laying the

foundation to lay it correctly.

35. More importantly, the trusses are two bearing points

trusses, and do not need the interior load-bearing wall. The

interior load-bearing wall simply adds to the windload capacity.

36. Respondent acknowledges that on 5 interior trusses,

the bearing points do not match up with the interior load-

bearing wall, but this is not critical because the trusses are

two bearing point trusses and these 5 trusses are interior

trusses.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this hearing

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

38. Florida Engineers Management Corporation provides

administrative, investigative, and prosecutorial services for

the Board of Professional Engineers as authorized by Section

471.038(3), Florida Statutes. The Board of Professional

Engineers is authorized to discipline licensees for negligence

in the practice of engineering by Section 471.033(1)(g), Florida

Statutes.

39. As used herein, "negligence" is defined as "the

failure by a professional engineer to utilize due care in

performing an engineering capacity or failing to have due regard

for acceptable standards of engineering procedures." Rule

61G15-19.001(4), Florida Administrative Code.

40. License revocations and discipline procedures are

penal in nature. Petitioner must demonstrate the truthfulness

of the allegations in the Administrative Complaint dated May 26,

2000, by "clear and convincing evidence." Department of Banking

and Finance vs. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996); Ferris vs. Turlington , 510 So. 2d 292 (Fla. 1987).

41. The "clear and convincing" standard requires:

That the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; and

testimony must be precise 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 allegations sought to be

established.

Slomowitz vs. Walker , 429 So. 2d 797 (Fla. 4th DCA 1983).

42. The burden of proof is on the party asserting the

affirmative of an issue, in this instance Petitioner, Florida

Engineers Management Corporation. Department of Transportation

vs. J.W.C. Company , 396 So. 2d 778 (Fla. 1st DCA 1981).

43. Where Petitioner charges negligent violations of

general standards of professional conduct, as in this case,

Petitioner must present expert testimony that proves the

required professional conduct, as well as the deviation

therefrom. Purvis vs. Department of Professional Regulation ,

461 So. 2d 134 (Fla. 1st DCA 1984).

44. There is no "clear and convincing" evidence of any

precise act or omission of Respondent, Mark Craig Fetherman,

P.E., that constituted a failure on his part to utilize due care

in performing an engineering capacity or failing to have due

regard for acceptable standards of engineering procedures.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

Recommended that Petitioner enter a final order finding

that Respondent is not guilty of "negligence" as alleged in the

Administrative Complaint dated May 22, 2000.

DONE AND ENTERED this 1st day of February, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, 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 1st day of February, 2001.

COPIES FURNISHED :

Minerva Higgins, Esquire

1770 Fowler Drive

Merritt Island, Florida 32952

Douglas Sunshine, Esquire

Florida Engineers Management Corporation

1208 Hays Street

Tallahassee, Florida 32301

Natalie A. Lowe, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

1208 Hays Street

Tallahassee, Florida 32301

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

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.