05-001189PL Florida Engineers Management Corporation vs. Jeremiah J. Walker, P.E. Status: Closed Recommended Order on Thursday, September 22, 2005.

Summary: Petitioner alleged Respondent was negligent in the performance of duties because he signed a portion of a form that was further completed by others, giving rise to an erroneous interpretation of the form`s content. Respondent`s action is not negligence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 05-1189PL

)

JEREMIAH J. WALKER, P.E., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this matter came on for hearing before

Harry L. Hooper, a duly-designated Administrative Law Judge of

the Division of Administrative Hearings, on June 29, 2005, in

Pensacola, Florida.

APPEARANCES

For Petitioner : Douglas D. Sunshine, Esquire

ida Engineers Management Corporation Flor

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

For Respondent : Pamela A. Moine, Esquire

Assistant United States Attorney

Northern District of Florida

21 East Garden Street, Suite 400

Pensacola, Florida 32502

STATEMENT OF THE ISSUE

Whether the Board of Professional Engineers should penalize

Respondent because of negligence in the practice of his

profession.

PRELIMINARY STATEMENT

On August 4, 2004, Petitioner, Florida Engineers Management

Corporation (Corporation), filed an Administrative Complaint,

before the Board of Professional Engineers (Board) alleging that

Respondent, Jeremiah J. Walker (Mr. Walker), was negligent in

the practice of engineering. This Complaint alleged that

Mr. Walker, by issuing a Certificate of Construction Completion

which was incorrect, allowed the resumption of water service

though a potable water system at Hurlburt Air Force Base,

Florida, which had not been disinfected or bacteriologically

surveyed or evaluated.

In a Petition for Formal Hearing executed on February 3,

2005, Mr. Walker requested that the Board dismiss the complaint

or in the alternative, that the Board provide a formal

administrative hearing. On April 1, 2005, the Board forwarded

the matter to the Division of Administrative Hearings.

On May 26, 2005, the Corporation filed an Amended

Administrative Complaint. This Administrative Complaint did not

allege that Mr. Walker had allowed impure or unsanitary water to

flow through the pipes at Hurlburt Field. Rather, it alleged

that Mr. Walker submitted a Certificate of Construction

Completion to the Florida Department of Environmental Protection

indicating that the potable water system was complete and, "in

code compliance with minor deviations from the permitted

construction plans and specifications when in fact it was not."

The case was set for hearing June 3, 2005.

On June 2, 2005, a Second Amended Administrative Complaint

was filed which alleged only that Mr. Walker executed Part IV of

a Certificate of Construction Completion which was submitted to

the Florida Department of Environmental Protection indicating

that the potable water system was complete and, "in code

compliance with minor deviations from the permitted construction

plans and specifications when in fact it was not." It added the

sentence, "However, the certification was submitted for the

entire project." It is this Complaint that was considered the

charging document at the hearing.

At the hearing, Petitioner presented the testimony of three

witnesses. Respondent also presented the testimony of three

witnesses. Respondent offered Exhibit Nos. 1 through 7, and had

six accepted into evidence. The parties' offered Joint Exhibit

Nos. 1 through 4 which were received into evidence. Joint

Exhibit No. 4 is the Deposition of Andrea Bishop.

A Transcript was filed on July 20, 2005. After the

hearing, Mr. Walker and the Corporation timely filed Proposed

Findings of Fact and Conclusions of Law on September 9, 2005,

and they were considered in the preparation of this Recommended

Order.

References to statutes are to Florida Statutes (2002)

unless otherwise noted.

FINDINGS OF FACT

1. Respondent Mr. Walker holds professional engineer's

license no. P.E. 40276. His license was issued by the Florida

Board of Professional Engineers. During times pertinent he was

employed by the U.S. Army Corps of Engineers (Corps).

2. The Corporation is charged with providing investigative

and prosecutorial services to the Board in accordance with

Sections 455.32, 471.005(9), and 471.038, Florida Statutes.

3. The Board has the authority to assess penalties against

professional engineers pursuant to Section 471.033(3), for

violations of Section 471.033(1).

4. Mr. Walker has been the Resident Engineer, Construction

Division, with the Corps at Hurlburt Field, Florida during all

times pertinent. Hurlburt Field is a U. S. Air Force Base. The

Corps of Engineers administers major construction projects at

Hurlburt Field. During times pertinent Mr. Walker supervised

about eight people.

5. In late 2001 or early 2002, the Corps awarded a

contract to widen Cody Road and Independence Road, which are

located on the premises of Hurlburt Field. Both required the

relocation of water lines.

6. The Corps gave a design contract for the road widening

project to an architect engineer firm named JE/Sverdrup, of

Jacksonville, Florida. JE/Sverdrup prepared an Application for

a Public Drinking Water Facility Construction Permit for

submission to the Florida Department of Environmental Protection

(DEP).

7. DEP was involved in this construction contract because

it required the relocation of over 5,000 linear feet of potable

water lines. The person who actually signed the permit

application was Ronald J. Lowe, Professional Engineer, for a

permittee identified as Colonel Timothy Boone, U. S. Air Force.

The permit request was submitted to DEP on May 24, 2001. Base

Civil Engineering acted as liaison with DEP through its employee

Andrea Bishop (Ms. Bishop). The Corps, and Mr. Walker, had no

contact with DEP.

8. Permit/Certification No. 0184807-001-DS/C, addressing

the road widening project, was granted on June 15, 2001. DEP

expected the permit to be closed out upon completion of the

construction or upon completion of part of the construction. In

order to close out a permit, DEP required a certification by a

licensed professional engineer, to the effect that the

construction was in accordance with the plans submitted with the

permit; that the record drawings for the substantially completed

portions of the project were adequate; and that all deviations

from the construction permit were indicated, must be provided.

Also, a satisfactory analysis of bacteriological samples must be

provided.

9. On August 16, 2002, subsequent to the completion of

substantial construction work, a Certification of Construction

Completion and Request for a Letter of Clearance to Place a

Public Drinking Water Facility into Service (Certificate of

Completion) was signed by Lieutenant Colonel Jeffrey L.

Pitchford, Commander, 16th Civil Engineer Squadron. During the

course of construction of this project, Lieutenant Colonel

Pitchford, at least weekly toured the sites with Mr. Walker.

Lieutenant Colonel Pitchford was aware of what the status of the

project was on an on-going basis.

10. At the time the Certificate of Completion was fully

executed, work on Independence Road had been completed. Work on

Cody Road had not been completed. Lieutenant Colonel Pitchford

was aware of that fact.

11. The Certificate of Completion contained attachments

that included pressure gauge information, bacterial test

results, and red line "as built" drawings. The pressure gauge

information said that the tests were conducted on Independence

Road. The red line "as built" drawings submitted were drawings

of Independence Road. The bacterial analysis does not reveal on

what road samples were taken. A careful reading of the

Certificate of Completion, as submitted, reveals that it

addresses only the completion of Independence Road.

12. The Certificate of Completion is divided into four

parts. Part I is entitled "Project Name and Construction Permit

Number, Permittee, Etc." It identifies the project and the

permit number, among other items of information. Ms. Bishop,

the Compliance Program Manager, at Base Civil Engineering at

Hurlburt Field, completed Part I of the form. As representative

of the U. S. Air Force, Ms. Bishop is the only liaison to DEP.

There is no controversy with regard to the manner in which Part

I was completed.

13. Upon completion of Part I, Ms. Bishop, in accordance

with established procedure, sent the Certificate of Completion

to the Corps. Mr. Walker executed Part IV and returned it to

Ms. Bishop. Thereafter, Parts II and III were executed by

Lieutenant Colonel Pitchford, as described below.

14. Part II of the Certificate of Completion is entitled

"Statement by Permittee." The person who signed Part II,

Lieutenant Colonel Pitchford, certified as authorized

representative of Hurlburt Field, that the contractor had

furnished Hurlburt Field with record drawings for the

substantially completed portion of the project and that record

drawings were available in his office.

15. Lieutenant Colonel Pitchford also certified that, "if

this project involves the construction of any new or altered

treatment facilities, an operation and maintenance manual for

the new and altered treatment facilities included in the

substantially completed portion of this project is available for

review at the site of the new and altered treatment facilities."

Lieutenant Colonel Pitchford signed Part II on August 16, 2002.

16. Part III is entitled "Statement by Owner/Operator of

Project After It Is Placed into Service." This was signed by

Lieutenant Colonel Pitchford. In this part he certified that as

representative of Hurlburt Air Force Base, he will be the

owner/operator after it is placed in service. He also certified

that he received a copy of the record drawings and that they

were available for his review at his command.

17. Part III of the Certificate of Completion also stated

that the project, 0184807-001-DS/C, was substantially complete.

This block was signed by Lieutenant Colonel Pitchford on

August 16, 2002. As noted earlier, when Mr. Walker executed

Part IV, Parts II and III were not completed.

18. Part IV of the Certificate of Completion is entitled,

"Certification of Construction Completion by Professional

Engineer in Responsible Charge of Inspecting Construction of

Project." Part IV was executed by Mr. Walker on August 15,

2002. By his signature he certified that as a professional

engineer in Florida he was responsible for inspecting the

construction of the road widening project in order to determine

if the work "is proceeding in compliance with the construction

permit and approved plans and specifications."

19. In Part IV of the Certificate of Completion he also

certified that, ". . . the substantially completed portion of

this project has been constructed in accordance with the

construction permit. . . ." Moreover, he certified, among other

things, that the record drawings for the substantially completed

portion of the project are accurate, and, that to the best of

his knowledge all water mains have been disinfected and

bacteriologically tested in accordance with certain DEP rules.

He certified that the certification was based upon an on-site

observation.

20. Importantly, Part IV, signed by Mr. Walker, also

asserted that, "This certification does not necessarily

constitute a certification of final completion of construction.

Additional construction may be needed to satisfy all conditions

of the construction contract documents."

21. Part IV has an inked stamp impression upon it, which

was also signed by Mr. Walker, which averred that the project

was designed by the Mobile District of the U. S. Army Corps of

Engineers and that the initials or signatures on the document

were made within the scope of his employment.

22. The fully executed Certificate of Completion was

submitted to DEP by Ms. Bishop. Mr. Walker was not involved in

submitting it. DEP received the Certificate of Completion and

erroneously concluded that both the Cody Road Project, as well

as the Independence Road project, had been completed.

Accordingly, they closed out the project.

23. Subsequently, a former employee in Mr. Walker's

Office sent letters to government agencies asserting that due to

Mr. Walker's negligence, impure water had been provided to

personnel at Hurlburt Air Force Base. This was investigated.

The investigation determined that impure water had not been

provided to those using the potable water system on the base.

24. Because of the erroneous assumptions made by DEP

based on the Certificate of Completion, the permitting process

was reviewed by DEP, the Corps, and the U. S. Air Force. It was

determined that Hurlburt's permit certification process needed

review because the erroneous conclusions drawn by DEP were the

result of systemic problems with the procedures used. Following

this review, Hurlburt Air Force Base developed a new Standing

Operating Procedure, so that this type of error and

miscommunication might be avoided in the future. This was sent

to DEP on December 8, 2003.

25. DEP revised their Certificate of Completion form

effective August 28, 2003. The revision was not done solely

because of the incident with the form used in the Hurlburt Field

construction.

26. When Mr. Walker signed Part IV of the Certificate of

Completion, the only other part of the form that was completed

was Part I. The information certified by Mr. Walker was

entirely correct and truthful. Moreover, the language in Part

IV specifically noted that, "This certification does not

necessarily constitute a certification of final completion of

construction."

27. Dr. Chen H. Lin is a professional engineer with an

ecology and environmental consulting firm. He is a graduate of

a university in Taiwan with a Bachelor in Civil Engineering

degree, has a Master in Civil Engineering degree from Auburn

University, and a Ph.D. in Environmental Engineering from the

University of Florida. He is licensed as a professional

engineer in Florida, Alabama, South Carolina, and Michigan. He

was accepted as an expert in civil engineering and in the

permitting process with DEP in reference to water, waste-water,

and waste-water treatment.

28. It is Dr. Lin's opinion that Mr. Walker did not

exercise due care and was negligent as a professional engineer

because he filled out and signed Part IV of the Certificate of

Completion at a time when Parts II and III were blank.

29. Dr. Lin is a credible expert witness and his testimony

is given great weight as to generally accepted standards

applicable to professional engineers. However, his experience

with specific military procedures is limited. Therefore, his

opinion that Mr. Walker was negligent is rejected because of the

factual context and procedures that existed at the time within

the Corps and Base Civil Engineering at Hurlburt Field.

30. James J. Mallett is a registered professional engineer

in Florida and has been since 1963. He is also licensed in

Alabama, Georgia, Tennessee, and Louisiana. He graduated from

Auburn University in 1955 and received a Master of Civil

Engineering degree from the University of Illinois. He also has

a Master of Business Administration degree from the University

of Alabama at Birmingham.

31. Mr. Mallett has worked in the area of water system

projects in many states and with the military and the U. S. Army

Corps of Engineers since the late 1970s. He has worked on water

projects at Hurlburt Field and is familiar with the processes

used there. It is his opinion that it is standing operating

procedure at Hurlburt to complete the Certificate of Completion

in the manner in which the form at issue was completed.

32. It is his opinion that Section IV does not imply that

the project is completed and that if DEP had read the form

closely they would have known that the Certificate of Completion

addressed only Independence Road. Mr. Mallett believes the form

is confusing. He does not believe that it was negligent for

Mr. Walker to sign Part IV prior to the completion of Parts II

and III.

33. Mr. Mallett's testimony is more credible than the

testimony of Mr. Lin as to the presence or absence of

negligence, because Mr. Mallett is more familiar with the

specific procedures used at Hurlburt Field and military

construction projects in general. It is his opinion that

Mr. Walker's actions, in the context of the procedures employed

at Hurlburt Field, were entirely correct and were not negligent.

This opinion is accepted as fact.

34. Ms. Bishop's testimony provided the actual cause of

the error, which was a result of the lack of communication among

the Corps and the Base Civil Engineering Section and herself.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.69 and 120.57(1), Fla. Stats.

36. Section 471.033(1)(g), authorizes the Board, on whose

behalf the Corporation has prosecuted this matter pursuant to

Section 471.038(3), to discipline an engineer proved guilty of

negligence in the practice of engineering.

37. The charge in this case is penal in nature and must be

strictly construed, with ambiguities being resolved in favor of

the licensee. Lester v. Department of Professional and

Occupational Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA

1977) and Elmariah V. Department of Professional Regulation , 574

So. 2d 164 (Fla. 1st DCA 1990).

38. As the party asserting the affirmative of an issue,

the Corporation has the burden on proof. Department of

Transportation v. J.W.C Co. , 396 So. 2d 778, 790 (Fla. 1st DCA

1981).

39. In order for the Board to suspend or revoke an

engineer's license, impose an administrative fine, issue a

reprimand, or mete out any other penalty provided in Section

471.033(3), the Corporation must prove the charges by clear and

convincing evidence. Ferris v. Turlington , 510 So. 2d 292, 294

(Fla. 1987) and Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932 (Fla. 1996).

40. The grounds proven must be those specifically alleged

in the Administrative Complaint. See, Cottrill v. Department of

Insurance , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1987).

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

defines the term "negligence," for the purposes of disciplinary

proceedings, to mean "the failure by a professional engineer to

utilize due care in performing in an engineering capacity or

failing to have due regard for acceptable standards of

engineering principles." The rule further explains:

Professional engineers shall approve and

seal only those documents that conform to

acceptable engineering standards and

safeguard the life, health, property and

welfare of the public.

Failure to comply with the procedures set

forth in the Responsibility Rules as adopted

by the Board of Professional Engineers shall

be considered as non-compliance with this

section unless the deviation or departures

therefrom are justified by the specific

circumstances of the project in question and

the sound professional judgment of the

professional engineer.

42. The Responsibility Rules, noted in Florida

Administrative Code Rule 61G15-19.001(4), are set forth in

Florida Administrative Code Rule 61G15-30. They are

inapplicable to this case.

43. The allegation of the complaint, at paragraph 5, that

Mr. Walker submitted a Certification of Construction Completion

to DEP was not proven. Mr. Walker had no dealings with DEP.

The implication of the allegation, at paragraph 5, that

Mr. Walker indicated "that the Potable Water System was complete

and in code compliance with minor deviations from the permitted

construction plans and specifications when in fact it was not,"

is not proven. Furthermore, it was not proven that Mr. Walker

was negligent in the practice of professional engineering.

44. The award of attorney's fees to Mr. Walker is not

permitted pursuant to Section 120.595. The Corporation did not

participate in these proceedings for an improper purpose.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Board of Professional

Engineers enter a final order dismissing the Administrative

Complaint against Mr. Walker.

DONE AND ENTERED this 22nd day of September, 2005, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 22nd day of September, 2005.

COPIES FURNISHED :

Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Pamela A. Moine, Esquire

Assistant United States Attorney

Northern District of Florida

21 East Garden Street, Suite 400

Pensacola, Florida 32502

Paul J. Martin, Executive Director

Florida Board of Professional Engineers

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5256

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.