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


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8FLORIDA ENGINEERS MANAGEMENT )

12CORPORATION, )

14)

15Petitioner, )

17)

18vs. ) Case No. 00-2614

23)

24MARK CRAIG FETHERMAN, P.E., )

29)

30Respondent. )

32)

33RECOMMENDED ORDER

35Pursuant to notice, the Division of Administrative

42Hearings, by its duly-designated Administrative Law Judge,

49Jeff B. Clark, held a formal hearing in this case on

60December 7 and 8, 2000, in Orlando, Florida.

68APPEARANCES

69For Petitioner: Do uglas D. Sunshine, Esquire

76Florida Board of Professional Engineers

811208 Hays Street

84Tallahassee, Florida 32301

87For Respondent: Minerva Higgins, Esquire

921770 Fowler Drive

95Merritt Island, Florida 32952

99STATEMENT OF THE ISSUE

103Whether the license of Respondent, Mark Craig Fetherman,

111P.E., should be disciplined for negligence in the practice of

121engineering, in violation of Section 471.033(1)(g), Florida

128Statutes, as more specifically alleged in the Administrative

136Complaint filed in this case on May 27, 2000.

145PRELIMINARY STATEMENT

147On May 27, 2000, Petitioner, Florida Engineers Management

155Corporation, filed an Administrative Complaint alleging in five

163counts that Respondent, Mark Craig Fetherman, P.E., violated

171Section 471.033(1)(g), Florida Statutes, by negligently

177practicing engineering. By letter dated June 20, 2000,

185Respondent disputed the allegations in the Administrative

192Complaint and requested a formal hearing. The matter was

201referred to the Division of Administrative Hearings on June 27,

2112000. An Initial Order was forwarded to the parties on June 30,

2232000.

224On July 28, 2000, a Notice of Hearing was entered setting

235the final hearing on November 7, 2000, in Orlando, Florida. On

246Respondent's Motion, the case was rescheduled for final hearing

255on December 7 and 8, 2000.

261At the final hearing, Petitioner presented two witnesses,

269one of whom, Wilbur T. Yaxley, P.E., was accepted as an expert

281witness. Petitioner offered five exhibits, all of which were

290admitted into evidence. Respondent presented three witnesses,

297including himself, and offered five exhibits. All were admitted

306into evidence.

308At the close of the evidence, the parties were advised of

319their right to submit proposed recommended orders, and any

328memorandum of law they wished to present. The parties requested

338and received 25 days from the filing of the transcript to submit

350proposed recommended orders. The Transcript of the proceedings

358was filed on January 3, 2001.

364Respondent submitted Proposed Findings of Fact and

371Conclusions of Law on January 22, 2000; Petitioner submitted

380Petitioner's Proposed Recommended Order on January 26, 2000.

388Both were thoughtfully considered.

392FINDINGS OF FACT

395Based on the oral and documentary evidence presented at the

405final hearing, the following findings of facts are made.

4141. Petitioner, Florida Engineers Management Corporation,

420provides prosecutorial services to the Board of Professional

428Engineers as authorized by Section 471.038(4), Florida Statutes.

436The Board of Professional Engineers is charged with regulating

445the practice of engineering pursuant to Chapters 455 and 471,

455Florida Statutes.

4572. Respondent, Mark Craig Fetherman, P.E., is a licensed

466professional engineer holding License No. PE40116. Prior to the

475instant case, he has not been subject to disciplinary action.

4853. Respondent has a bachelor's degree in physics and

494mechanical engineering and a master's degree in management

502information systems.

5044. Respondent has developed software to calculate

511windloads for wood and metal trusses. He operates his own

521company and offers engineering services to others which include

530performing load calculations for residential homes.

5365. Petitioner's expert witness, Wilbur T. Yaxley, P.E., is

545a civil engineer primarily concerned with building and

553structure-type work. He has approximately 24 years' engineering

561experience and has done consulting and forensic work since 1993.

571This is his first case involving light-gauge metal roof trusses.

581He has never designed a roof truss. He has never been involved

593in the manufacture of light-gauge metal trusses.

6006. Petitioner's expert witness testified that light-gauge

607steel trusses are a fairly new process. Light-gauge steel (16,

61718, 20 gauge) has become a major structural building material in

628the last five years. Unlike the wood truss industry, there

638isn't much published information on light-gauge metal trusses,

646and what information that is available is not approved or

656accepted by the Standards Building Code. The Standards Building

665Code refers to American Iron and Steel Institute (AISI)

674documentation: "The design of structural members cold-formed

681from carbon or low alloy steel shall conform to AISI

691Specifications . . . ."

6967. While Mr. Yaxley is familiar with "finite element

705analysis" (using computer software to analyze a system or

714component to see how it reacts under certain loading), he

724personally does not do finite element analysis. He has not

734analyzed the truss system in this case as a whole.

7448. Respondent had contracted with Marjorie and Art

752Schiavone to design a residence which included a connected

761airplane hanger. In addition, Respondent was to "procure steel

770roof trusses for the residence," specifically, the scope of work

780included materials, truss manufacture and delivery, and

787modifications needed due for foundation and/or wall

794configurations.

7959. Art Schiavone (hereinafter "Schiavone") accepted

802Respondent's plans without objection.

80610. Schiavone, who had little building experience, as

814property owner acted as his own general contractor.

82211. Petitioner's expert testified that "Schiavone really

829thought Mr. Fetherman was supervising his construction."

836Respondent testified that he was not supervising construction

844and Petitioner's expert agreed that was not Respondent's role.

85312. There was a great deal of personal conflict bet ween

864Schiavone and Respondent. Schiavone prepared and dated his

872Complaint to the Board of Professional Engineers on November 16,

8821999. He then showed the Complaint to Respondent's partner "to

892get satisfaction out of Mr. Fetherman."

89813. Respondent left th e job in mid-December. The

907Complaint was received by the Board of Professional Engineers on

917December 28, 1999. Schiavone told Respondent's partner that he

926would withdraw the Complaint if Respondent would continue as

935engineer on the job.

93914. There is conf lict in the testimony of Schiavone and

950Respondent. I find the testimony of Respondent to be more

960credible.

96115. Some of the roof (and hanger) trusses were damaged

971when they arrived at the job site. The repair process involved

982removing the damaged member and replacing it with a new piece of

994metal. Holes had to be redrilled and screws were replaced.

100416. Respondent was not present when some of the trusses

1014were repaired. Similarly, Respondent was not present when some

1023of the roof trusses were modified.

102917. Schiavone modified the trusses without the benefit of

1038shop drawings after Respondent left the job.

104518. Lisa Connelly, Plans Examiner for the Marion County

1054Building Department, testified that Respondent came to her

1062office and told her that Schiavone had altered the trusses

1072without Respondent's supervision and that Respondent was going

1080to remove himself from the job due to deviations in engineering,

1091in that the trusses were not what Respondent had engineered.

110119. Respondent noted 13 construction items which had not

1110been done correctly, at least one-half of which would create

1120problems with the trusses being installed properly.

112720. When Schiavone poured the wall lintel, he failed to

1137install connector straps as per plans. Respondent had provided

1146Schiavone detailed drawings showing the location of two

1154connector straps per truss heel. In most instances, as built,

1164there was only one connector strap per truss heel and it was not

1177properly located to fit into the truss heel gusset plate.

118721. Petitioner's expert found from 10 to 18 screws in most

1198truss heel gusset plates. Respondent had photograph

1205enlargements (taken for another purpose) which showed 18 screws

1214in each truss heel gusset plate in the particular photographs.

1224These photographs were taken to show transportation damage and

1233would have showed the condition of the trusses before any repair

1244or modifications.

124622. The typical wall cross-section drawing shows two

1254connector straps with seven screws per strap.

126123. Had there been two connector straps per location, ha d

1272the connector straps been properly located, and had they been

1282installed into the truss heel connection gusset plate as per

1292plans, there would have been 32 screws per truss heel, which

1303would have exceeded design criteria.

130824. It was not Respondent's respo nsibility to ensure that

1318Schiavone built the structure according to the plans.

132625. Respondent's General Summary Sheet specifies 25

1333self-drilling screws at the heel connection of the hanger truss.

1343Petitioner's expert opines that 54 No. 10 self-drilling screws

1352are needed.

135426. Respondent testified that his software calculates the

1362whole truss system, not just the heel connection standing alone,

1372and that instead of shear, the heel connection would be

1382subjected to rotation stress.

138627. Respondent calculated va rying windloads, safety

1393factors, and the number of screws required for varying windloads

1403and determined that 25 screws would be needed for 120 mph

1414windloads with a 3.5 safety factor; 54 screws with the same

1425general safety factor would allow a 300-320 mph windload.

143428. Petitioner's expert opines that both the hanger truss

1443heel connection and the scissors truss would require a heavier

1453gusset plate. He did not, however, calculate forces and loads

1463on the entire truss system. He simply ran calculations on a

1474normal pin-connection truss design.

147829. Respondent determined, using his software, that a

148620-gauge piece of steel is satisfactory for the gusset plate.

149630. Petitioner's expert opines that in the foundation

1504plan, the thickened portion of foundation slab would be for an

1515interior load-bearing wall.

151831. Petitioner's expert acknowledges that he is not sure

1527what the loads would be on the interior load-bearing wall. He

1538does know that the bearing point on some of the trusses and the

1551interior load-bearing wall would not match up by 42 inches.

1561But, he testified that he did not know whether this would make a

1574difference or not.

157732. The interior load-bearing wall was constructed after

1585the trusses were installed and after Respondent left the job.

159533. There is a jog show n in the floor plan for the

1608interior load-bearing wall which is inconsistent with the

1616foundation plan.

161834. Respondent testified that the plans were as he

1627intended. He designed the interior load-bearing wall footer to

1636run straight because its easier for the individuals laying the

1646foundation to lay it correctly.

165135. More importantly, the trusses are two bearing points

1660trusses, and do not need the interior load-bearing wall. The

1670interior load-bearing wall simply adds to the windload capacity.

167936. Respondent acknowledges that on 5 interior trusses,

1687the bearing points do not match up with the interior load-

1698bearing wall, but this is not critical because the trusses are

1709two bearing point trusses and these 5 trusses are interior

1719trusses.

1720CONCLUSIONS OF LAW

172337. The Division of Administrative Hearings has

1730jurisdiction over the parties and subject matter of this hearing

1740pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

174838. Florida Engineers Management Corporation provides

1754administrative, investigative, and prosecutorial services for

1760the Board of Professional Engineers as authorized by Section

1769471.038(3), Florida Statutes. The Board of Professional

1776Engineers is authorized to discipline licensees for negligence

1784in the practice of engineering by Section 471.033(1)(g), Florida

1793Statutes.

179439. As used herein, "negligence" is defined as "the

1803failure by a professional engineer to utilize due care in

1813performing an engineering capacity or failing to have due regard

1823for acceptable standards of engineering procedures." Rule

183061G15-19.001(4), Florida Administrative Code.

183440. License revocations and discipline procedures are

1841penal in nature. Petitioner must demonstrate the truthfulness

1849of the allegations in the Administrative Complaint dated May 26,

18592000, by "clear and convincing evidence." Department of Banking

1868and Finance vs. Osborne Stern and Company , 670 So. 2d 932 (Fla.

18801996); Ferris vs. Turlington , 510 So. 2d 292 (Fla. 1987).

189041. The "clear and convincing" standard requires:

1897That the evidence must be found to be

1905credible; the facts to which the witnesses

1912testify must be distinctly remembered; and

1918testimony must be precise and explicit and

1925the witnesses must be lacking in confusion

1932as to the facts in issue. The evidence must

1941be of such weight that it produces in the

1950mind of the trier of fact a firm belief or

1960conviction, without hesitancy, as to the

1966truth of the allegations sought to be

1973established.

1974Slomowitz vs. Walker , 429 So. 2d 797 (Fla. 4th DCA 1983).

198542. The burden of proof is on the party asserting the

1996affirmative of an issue, in this instance Petitioner, Florida

2005Engineers Management Corporation. Department of Transportation

2011vs. J.W.C. Company , 396 So. 2d 778 (Fla. 1st DCA 1981).

202243. Where Petitioner charges negligent violations of

2029general standards of professional conduct, as in this case,

2038Petitioner must present expert testimony that proves the

2046required professional conduct, as well as the deviation

2054therefrom. Purvis vs. Department of Professional Regulation ,

2061461 So. 2d 134 (Fla. 1st DCA 1984).

206944. There is no "clear and convincing" evidence of any

2079precise act or omission of Respondent, Mark Craig Fetherman,

2088P.E., that constituted a failure on his part to utilize due care

2100in performing an engineering capacity or failing to have due

2110regard for acceptable standards of engineering procedures.

2117RECOMMENDATION

2118Based on the foregoing Findings of Fact and Conclusions of

2128Law, it is

2131Recommended that Petitioner enter a final order finding

2139that Respondent is not guilty of "negligence" as alleged in the

2150Administrative Complaint dated May 22, 2000.

2156DONE AND ENTERED this 1st day of February, 2001, in

2166Tallahassee, Leon County, Florida.

2170___________________________________

2171JEFF B. CLARK

2174Administrative Law Judge

2177Division of Administrative Hearings

2181The DeSoto Building

21841230 Apalachee Parkway

2187Tallahassee, Florida 32399-3060

2190(850) 488-9675 SUNCOM 278-9675

2194Fax Filing (850) 921-6847

2198www.doah.state.fl.us

2199Filed with the Clerk of the

2205Division of Administrative Hearings

2209this 1st day of February, 2001.

2215COPIES FURNISHED :

2218Minerva Higgins, Esquire

22211770 Fowler Drive

2224Merritt Island, Florida 32952

2228Douglas Sunshine, Esquire

2231Florida Engineers Management Corporation

22351208 Hays Street

2238Tallahassee, Florida 32301

2241Natalie A. Lowe, Executive Director

2246Board of Professional Engineers

2250Department of Business and

2254Professional Regulation

22561208 Hays Street

2259Tallahassee, Florida 32301

2262Hardy L. Roberts, III, General Counsel

2268Department of Business and

2272Professional Regulation

22741940 North Monroe Street

2278Tallahassee, Florida 32399-0792

2281NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2287All parties have the right to submit written exceptions within

229715 days from the date of this Recommended Order. Any exceptions

2308to this Recommended Order should be filed with the agency that

2319will issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/15/2004
Proceedings: Final Order filed.
PDF:
Date: 05/29/2001
Proceedings: Agency Final Order
PDF:
Date: 02/05/2001
Proceedings: Letter to Judge J. Clark from M. Higgins In re: petitioner`s recommended order filed.
PDF:
Date: 02/01/2001
Proceedings: Recommended Order
PDF:
Date: 02/01/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 02/01/2001
Proceedings: Recommended Order issued (hearing held December 7 and 8, 2000) CASE CLOSED.
PDF:
Date: 01/26/2001
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 01/22/2001
Proceedings: Proposed Findings of Fact and Conclusions of Law filed by M. Higgins.
Date: 01/03/2001
Proceedings: Transcript (Volumes 1, 2) filed.
Date: 01/03/2001
Proceedings: Notice of Filing Transcript filed.
Date: 12/07/2000
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 12/04/2000
Proceedings: Motion to Order Petitioner to Produce Photographs taken of the Schiavone House/Trusses at the Administrative Hearing (filed via facsimile).
Date: 11/30/2000
Proceedings: Second Amended Response to Petitioner`s Request to Produce (filed via facsimile).
PDF:
Date: 11/30/2000
Proceedings: Third Supplement ot Joint Prehearing Stipulation (from Respondent) (filed via facsimile).
PDF:
Date: 11/30/2000
Proceedings: Notice of Acceptance (filed by Respondent via facsimile).
PDF:
Date: 11/29/2000
Proceedings: Second Supplement to Joint Pre-Hearing Stipulation (from Respondent, filed via facsimile).
PDF:
Date: 11/28/2000
Proceedings: Motion to Compel or Alternatively Motion to Prohibit the Introduction of Designated Matters in Evidence (filed by Petitioner via facsimile).
Date: 11/27/2000
Proceedings: Amended Response to Petitioner`s Request to Produce (filed via facsimile).
PDF:
Date: 11/27/2000
Proceedings: Notice of Objections (filed by Respondent via facsimile).
Date: 11/27/2000
Proceedings: Amended Response to Petitioner`s Interrogatories (filed via facsimile).
PDF:
Date: 11/06/2000
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for December 7 and 8, 2000; 1:00 p.m.; Orlando, FL).
PDF:
Date: 11/03/2000
Proceedings: First Supplement to Joint Pre-Hearing Stipulation (from Respondent) (filed via facsimile).
Date: 11/03/2000
Proceedings: Response to Petitioner`s Request to Produce (filed via facsimile).
Date: 11/03/2000
Proceedings: Response to Petitioner`s Interrogatories (filed via facsimile).
PDF:
Date: 11/02/2000
Proceedings: Joint Prehearing Stipulation (filed via facsimile).
PDF:
Date: 11/02/2000
Proceedings: Joint Pre-Hearing Stipulation (from Respondent) (filed via facsimile).
PDF:
Date: 11/01/2000
Proceedings: Motion for Reconsideration (filed by Respondent via facsimile).
PDF:
Date: 10/30/2000
Proceedings: Order issued. (Respondent`s Amended Motion to continue Trial is Denied).
PDF:
Date: 10/26/2000
Proceedings: Amended Motion to Continue Trial (filed by Respondent via facsimile).
PDF:
Date: 10/23/2000
Proceedings: Motion to Continue Trial (filed by Respondent via facsimile).
Date: 10/20/2000
Proceedings: Notice of Filing Response to Request for Second Set of Interrogatories (filed by Petitioner via facsimile).
Date: 10/05/2000
Proceedings: Second Set of Interrogatories filed by Respondent.
Date: 09/28/2000
Proceedings: Amended Request for Discovery filed.
Date: 09/28/2000
Proceedings: Request for Production filed by Respondent.
Date: 09/27/2000
Proceedings: Notice of Filing Response to Request for Discovery (filed by Petitioner via facsimile).
Date: 09/21/2000
Proceedings: Notice of Filing Response to Discovery filed by Petitioner.
Date: 09/18/2000
Proceedings: Request for Discovery filed by Respondent.
Date: 09/14/2000
Proceedings: Notice of Filing Discovery Request (filed by Petitioner via facsimile).
Date: 07/31/2000
Proceedings: Initial Interrogatories (Respondent) filed with page 2 that was omitted in the fax facsimile transmission filed on July 27, 2000.
PDF:
Date: 07/28/2000
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 07/28/2000
Proceedings: Notice of Hearing issued. (hearing set for November 7, 2000; 9:30 a.m.; Orlando, FL)
Date: 07/27/2000
Proceedings: Initial Interrogatories. (filed by Respondent via facsimile; page 2 omitted)
PDF:
Date: 07/06/2000
Proceedings: Joint Response to Initial Order filed.
Date: 06/30/2000
Proceedings: Initial Order issued.
PDF:
Date: 06/27/2000
Proceedings: Election of Rights filed.
PDF:
Date: 06/27/2000
Proceedings: Administrative Complaint filed.
PDF:
Date: 06/27/2000
Proceedings: Agency referral filed.

Case Information

Judge:
JEFF B. CLARK
Date Filed:
06/27/2000
Date Assignment:
11/28/2000
Last Docket Entry:
07/15/2004
Location:
Orlando, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Related DOAH Cases(s) (1):

Related Florida Statute(s) (4):

Related Florida Rule(s) (1):