16-006395PL Florida Board Of Professional Engineers vs. Malcolm T. Watkins, P.E. Status: Closed Recommended Order on Tuesday, May 2, 2017.

Summary: Petitioner proved by clear and convincing evidence that Respondent should be disciplined for failing to report his criminal conviction; Petitioner did not prove that Respondent's crime constituted grounds for discipline under the licensing statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF PROFESSIONAL

ENGINEERS,

Petitioner,

vs. Case No. 16 - 6395PL

MALCOLM T. WATKINS, P.E.,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hea ring was held in this case on February 10, 2017,

in Tallahassee, Florida (with Respondent appearing by phone from

Defuniak Springs) , before Suzanne Van Wyk, Administrative Law

Judge for the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John J efferson Rimes III, Esquire

Florida Engineers Management Corporation

2639 North Monroe Street, Suite B - 112

Tallahassee, Florida 32303 - 5268

For Respondent: Malcolm T. Watkins, pro se

DC No. H46813

Walton Correctional I nstitution (Male)

691 Institution Road

DeFuniak Springs, Florida 32433

STATEMENT OF THE ISSUE S

Whether Respondent, Malcolm T. Watkins, violated s ections

455.227(1)(t) and 471.03 3(1)(a) and (d), Florida Statutes

(2015) , 1/ as alleged in the Adminis trative Complaint; and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

On September 23, 2016, Petitioner served an Administrative

Complaint upon Respondent alleging that Respondent had violated

statutory provisions regulating the practice of engineering.

Respondent timely requested a formal hearing to dispute the

allegations. Petitioner forwarded the Answer and Administrative

Complaint to the Division of Administrative Hearings (Division)

on October 28, 2016, for assignment of an Administrat ive Law

Judge (ALJ). The case was originally assigned to ALJ Gary Early

and set for hearing on December 12, 2016, but was later

continued to February 10, 2017. The case was transferred to the

undersigned on January 18, 2017.

The final hearing was held as rescheduled in Tallahassee,

Florida, with Respondent appearing by telephone from DeFuniak

Springs, Florida. Petitioner offered no witnesses and the

Respondent testified on his own behalf. PetitionerÓs Exhibits 1

and 5 through 11 were admitted in evidenc e. RespondentÓs late -

filed Exhibits 1 and 2 were admitted in evidence.

The one - volume Transcript of the proceedings was filed on

March 7, 2017. Petitioner timely filed a Proposed Recommended

Order on March 17, 2017. Respondent requested a first extensi on

until April 17, 2017, and a second extension until April 27,

2017, to make his post - hearing filing, both of which were

granted. To date, Respondent has not filed a proposed

recommended order .

FINDING S OF FACT

1. Petitioner, Florida Board of Profession al Engineers

(the Board), is charged with regulating the pract ice of

engineering pursuant to c hapter 455, Florida Statutes (2016).

2. The Florida Engineers Management Corporation (the

Corporation) is charged with providing administrative,

investigative, a nd prosecutorial services to the Boa rd pursuant

to s ection 471.038, Florida Statutes. The Complaint at issue

was filed by the Corporation on behalf of the Board.

3. At all times material hereto, Respondent has been a

Florida licensed professional engin eer, having been issued

license number 64064.

4. On July 17, 2015, Respondent was found guilty on the

following criminal counts by the Circuit Court of the Tenth

Judicial Circuit in and for Polk County, Florida, in Case 2011 -

CF - 002890 - 01: (1) Traveling t o meet a Minor for Unlawful

Sexual Conduct; (2) Use of Compu ter for Child Exploitation;

(3) Attempted Lewd or Lascivious Battery; and (4) Unlawful Use

of a Two - Way Communications Device.

5. Respondent was sentenced to 10 yearsÓ incarceration

followed by f ive yearsÓ probation. On Count 2, Respondent was

sentenced as a Sex Offender.

6. The sworn assertions in the April 25, 2011, Polk

County SheriffÓs Affidavit (the Affidavit), and the allegations

in the 4th and 6th Amended Information (the Informations) fi led

by the State Attorney in Case 2011 - CF - 002890 - 01, set out the

facts supporting RespondentÓs conviction. The allegations were

grounded in RespondentÓs having contacted, via the internet, a

fictitious 24 - year - old person posing as the custo dian of a

13 - y ear - old girl. Respondent arranged a me eting with the

supposed 13 - year - old, through her Ðcustodian,Ñ at which

Respondent would ha ve sexual relations with the 13 - year - old.

7. Respondent was arrested on April 25, 2011, at a

location in Polk County where he had arranged to meet the

ÐcustodianÑ along with the female minor.

8. On December 21, 2015, five months after RespondentÓs

conviction, PetitionerÓs Investigator, Wendy Anderson, received

a written complaint from Kyle Cartier, P.E., notifying

Petitioner o f the fact of RespondentÓs conviction. Upon

receipt, Petitioner opened Corporation Case Number 2016000255

(the Complaint).

9. On January 4, 2016, Ms. Ande rson notified Respondent

via U. S. Mail of the opening of the Complaint. On January 21,

2016, Respon dent replied to the Complaint and directed

Petitioner to RespondentÓs counsel.

10. Respondent subsequently sent two letters to

Petitioner, both dated March 11, 2016. The letters were

provided to Walton Correctional Institution for mailing on

March 18, 20 16, and were received by Petitioner on March 23,

2016.

11. The first letter notified Petitioner of RespondentÓs

conviction, and alleged that the conviction was not final

because it had been appealed. The second letter claimed that

the conviction did not relate to the practice of engineering

and reiterated that RespondentÓs conviction was not final

because it had been appealed.

12. RespondentÓs March 11, 2016, letter notifying

Petitioner of the conviction was received 238 days after

RespondentÓs convictio n.

13. Following her investigation of the Complaint, which

commenced on December 21, 2015, and concluded on July 28, 2016,

Ms. Anderson presented her investigative report to the Board.

14. The Board filed the instant two - count Administrative

Complaint ag ainst Respondent on September 23, 2016.

15. Count I alleges that Respondent violated section

471.033(1)(d) , which includes as grounds for disciplinary

action, being convicted or found guilty of a crime Ðwhich

directly relates to the practice of engineerin g or the ability

to practice engineering.Ñ

16. Count II alleges that Respondent violated section

471.033(1)(a) , which includes as grounds for disciplinary

action, faili ng to report in writing to the B oard within 30 days

after the licensee is convicted or found guilty of a crime in

any jurisdiction.

17. Pursuant to section 455.227(2), the Board may impose

any one in a range of penalties against Respondent for violating

the cited provisions, including license suspension or

revocation, practice restrictions , administrative fines,

reprimand, and probation.

CONCLUSIONS OF LAW

18. The Division has jurisdiction over both the subject

matter of, and the parties to, this proceeding under the

provisions of s ections 120.569 and 120.57(1), Florida Statutes.

19. Thi s is a proceeding in which Petitioner seeks to

revoke RespondentÓs license as a professional engineer. Because

disciplinary proceedings are considered to be penal in nature,

Petitioner is required to prove the allegations in the

Administrative Complaint b y clear and convincing evidence.

DepÓt of Banking & Fin. v. Osborne Stern and Co. , 670 So. 2d 932

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

20. Clear and convincing evidence Ðrequires more proof

than a Òpreponderance of the evidence Ó but less than Òbeyond and

to the exclusion of a reasonable doubt.ÓÑ In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). The clear and convincing

evidence level of proof

entails both a qualitative and quantitative

standard. The evidence must be credible;

the memories of the witnesses must be clear

and without confusion; and the sum total of

the evidence must be of sufficient weight to

convince the trier of fact without

hesitancy.

Clear and convincing evidence requires

that the evidence must be found to b e

credible; the facts to which the

witnesses testify must be distinctly

remembered; the 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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting, with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fl a. 4th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

ÐAlthough this standard of proof may be met where the evidence

is in conflict, it seems to preclude evidence that is

ambiguous.Ñ Westinghouse Elec. Corp., Inc. v. Shuler Bros.,

In c. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

21. Section 471.033 is penal in nature, and must be

strictly construed, with any ambiguity construed against

Petitioner. Penal statutes must be construed in terms of their

literal meaning, and words used by t he Legislature may not be

expanded to broaden the application of such statutes. Elmariah

v. DepÓt of Bus. & ProfÓl Reg. , 574 So. 2d 164, 165 (Fla. 1st

DCA 1990); see also Beckett v. DepÓt of Fin. Serv s. , 982 So. 2d

94, 100 (Fla. 1st DCA 2008); Whitaker v. DepÓt of Ins. , 680 So.

2d 528, 531 (Fla. 1st DCA 1996); Dyer v. DepÓt of Ins. & Treas . ,

585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

22. Moreover, the allegations against Respondent must be

measured against the law in effect at the time of the commission

of the acts alleged to warrant imposition of discipline.

McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d 441 (Fla. 5th DCA

2013). 2/

COUNT I

23. Petitioner first seeks to discipline Respondent based

upon his 2015 criminal convictions, pursuant to section 471.033.

24. Se ction 471.033, Florida Statutes reads, in pertinent

part, as follows:

471.033 Disciplinary proceedings. Ï

(1) The following acts constitute grounds

for which the disciplinary actions in

subsection (3) may be taken:

* * *

(d) Being convicted or found guilty of, or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

practice of engineering or the ability to

practice engineerin g.

Conviction

25. Respondent asserts that because his conviction is

under appeal, Respondent has not been ÐconvictedÑ for purposes

of section 471.033(1)(d). RespondentÓs assertion is not well

taken.

26. It is axiomatic that, for purposes of applying

st atutes of this nature, a person is convicted when adjudicated

guilty by a court of competent jurisdiction. Delta Truck

Brokers, Inc. v. King , 142 So. 2d 273, 275 (Fla. 1962). This

precedent has been consistently applied at the Division. See

DepÓt of Bus . and ProfÓl Reg. v. Nowell , Case No. 08 - 4836 (Fla.

DOAH Jan. 27, 2009); DepÓt of Bus. and ProfÓl. Reg. v. Mese ,

Case No. 00 - 3234 (Fla. DOAH Dec. 28, 2000; DBPR Mar. 14, 2001);

and DepÓt of ProfÓl Reg. v. Azima , Case No. 84 - 2536 ( Fla. DOAH

Apr. 25, 1985; F la. DBPR June 21, 1985).

27. Respondent has been ÐconvictedÑ of crimes, for

purposes of applying section 471.033, by virtue of having been

found guilty by a jury and adjudicated as such by a circuit

court, notwithstanding his pending appeal of the convict ion.

Relationship Between Conviction and Practice of Engineering

28. Respondent next argues that, assuming he has been

convicted of a crime, he cannot be found to have violated

section 471.033(1)(d) because the crimes for which he was

adjudicated guilty do not relate to either the practice of

engineering or the ability to practice engineering. At final

hearing, Respondent urged that his conviction bears no relation

to engineering as that term is statutorily defined.

29. A number of Florida cases demonst rate that, although

the statutory definition of a particular profession does not

specifically refer to acts involved in the crime committed, the

crime may nevertheless relate to the profession. See Ashe v.

DepÓt of ProfÓl Reg., Bd. of Accountancy , 467 So. 2d 814, 815

(Fla. 5th DCA 1985) (finding that accountantÓs fraudulent acts

involving gambling, although not directly related to his

technical ability to practice public accounting, related to the

practice of accounting); Rush v. DepÓt of ProfÓl Reg., Bd. of

Podiatry , 448 So. 2d 26, 28 (Fla. 1st DCA 1984) (finding

podiatristÓs conviction for conspiracy to possess and import

marijuana is within the scope of crimes directly related to the

practice of or ability to practice podiatry); and Doll v. DepÓt

of Heal th , 969 So. 2d 1103, 1106 (Fla. 1st DCA 2007) (finding

chiropractorÓs conviction for conspiracy to defraud Medicare

Ðrelated toÑ the practice of chiropractic medicine although not

related to his technical ability to practice as a chiropractor ).

30. As exp lained by the court in Rush ,

By confining the convictions upon which

disciplinary action may be based to those

directly related to the practice of podiatry,

the Legislature has not limited the grounds

for disciplinary action to only those crimes

which rela ted to the technical ability to

practice podiatry or to those which arise out

of misconduct in the office setting.

448 So. 2d at 27.

31. In the case at hand, Petitioner relies upon the

language of section 471.013, which requires applicants for an

enginee ring license to demonstrate good moral character, to draw

the legal conclusion that RespondentÓs conviction relates to the

practice of engineering or his ability to practice engineering.

32. Section 471.013, Florida Statutes (2015) reads, in

pertinent par t, as follows:

471.013 Examinations; prerequisites. -

(1)(a) A person shall be entitled to take

an examination for the purpose of

determining whether she or he is qualified

to practice in this state as an engineer if

the person is of good moral character and:

* * *

(2)(a) The board may refuse to certify an

applicant for failure to satisfy the

requirement of good moral character only if:

1. There is a substantial connection

between the lack of good moral character of

the applicant and the professional

responsibilities of a licensed engineer; and

2. The finding by the board of lack of good

moral character is supported by clear and

convincing evidence.

(b) When an applicant is found to be

unqualified for a license because of a lack

of good moral char acter, the board shall

furnish the applicant a statement containing

the findings of the board, a complete record

of the evidence upon which the determination

was based, and a notice of the rights of the

applicant to a rehearing and appeal.

33. Following a mere passing reference to the statute,

Petitioner, in its Proposed Recommended Order, summarily

concludes, as follows:

Since the Legislature has mandated that the

possession of Ògood moral characterÓ is a

prerequisite for obtaining a professional

[engin eering] license . . . then possession

of Ògood moral characterÓ is directly

related to the practice and ability to

practice the profession. Therefore a

conviction of a crime showing a lack of good

moral character by definition relates to the

practice and ability to practice

engineering.

Petitioner cites no case law construing section 471.013 to

support the conclusion that the prerequisite of good moral

character to sit for the engineering licensing exam is, ipse

dixit , required to maintain oneÓs duly - issu ed license. 3/

34. Surprisingly, Petitioner cites ALJ Li sa Shearer

NelsonÓs R ecommended O rder in Department of Business and

Professional Regulation, Board of Accountancy v. Larry Beard ,

Case No. 15 - 3940 (Fla. DOAH Oct. 13, 2015; Fla. Bd. of Acct .

Feb. 11, 2016) , in support of its argument. That case directly

contradicts PetitionerÓs conclusion that the good moral character

requirement in section 471.031 applies to a license disciplinary

proceeding pursuant to section 471.033:

[T]he provision upon which Res pondent relies

specifically indicates that it applies to

those instances where the failure to maintain

good moral character as a basis for denying

initial licensure to an applicant, as opposed

to those instances, as this one, where the

definition is applie d to a person who is

subject to discipline based on conduct

evidencing a lack of good moral character

after the license has been obtained.

35. By its plain language, section 471.031 defines

prerequisites to sit for initial license examination. In

contra st, section 471.033 specifically defines the grounds for

which disciplinary action may be taken. The undersigned cannot

read into the license disciplinary section a Ðgood moral

characterÑ requirement which does not exist. ÐWhen the

legislature has used a term, as it has here, in one section of

the statute but omits it in another section of the same statute,

[the court] will not imply it where it has been excluded.Ñ

Leisure Resorts, Inc. v. Frank J. Rooney, Inc. , 654 So. 2d 911,

914 (Fla. 1995); see also J.S. v. C.M. , 135 So. 3d 312, 317

(Fla. 1st DCA 2012); Beshore v. DepÓt of Fin. Serv s. , 928 So. 2d

411, 412 (Fla. 1st DCA 2006).

36. The undersigned does not dispute PetitionerÓs

conclusion that the crimes for which Respondent was convicted

reflect a lack of good moral character. However, the

undersigned is not free to recommen d discipline ag ainst a

licensee based upon her finding that PetitionerÓs behavior was

repugnant. The undersigned must follow the law. The

Legislature could include a lack of good moral character as a

basis for disciplinary action , but has not done so .

37. As such, many of the cases relied upon by Petitioner

to support its argument are wholly inapplicable. In Beard ,

supra , the licensee was disciplined under a statute which

include d Ðfailing to maintain a good moral characterÑ as grounds

for disciplinary action. § 473.323(1)(l), Fla. Stat. (1996).

In both Thomas and Taylor , supra , the licensees were disciplined

under a licensing statute which includes conviction of Ða

crime . . . which . . . involves moral turpitudeÑ as grounds for

disciplinary action. § 475.25(1)(f), Fla. Stat. (2005). The

license disciplinary statute in the case at hand includes no

similar language.

38. In this case, it is PetitionerÓs burden to prove, by

clea r and convincing evidence, that the crimes for which

Respondent was convicted Ðdirectly relate to the practice of

engineering or the ability to practice engineerin g.Ñ £ 471.033,

Fla. Stat. Unfortunately, Petitioner did not carry its burden.

Each of the cases cited by Petitioner to support imposing

discipline against professional licensees for criminal

conviction is distinguishable from the facts sub judice .

39. In Ashe , 467 So. 2d at 815, the accountant was

disciplined under a statute which included, as grounds for

disciplinary action, Ð[p]erformance of any fraudulent act while

holding a license to practice public accounting.Ñ

§ 473.323(1)(k), Fla. Stat. The Board of Accountancy

demonstrated by clear and convincing evidence that the

licenseeÓs convicti on for wire fraud clearly fell within the

stated grounds for disciplinary action.

40. In Rush , 448 So. 2d at 28, in determining the

licenseeÓs conviction for conspiracy to import marijuana was

Ðwithin the scope of Òthose crimes which directly relate to th e

practice or ability to practice podiatry, Ó Ñ the court

considered, among other factors, that the podiatrist was one of

six categories of licensed professionals allowed to prescribe,

administer, and dispense controlled substances, that the Florida

Supreme Court had describe d marijuana as Ð a harmful mind -

altering drug which endangers the health of the user and which

is highly detrimental to the public welfare ,Ñ and that the

licenseeÓs conduct Ðshows a lack of honesty, integrity, and

judgment, and an unwillin gness to abide by the Laws of the State

of Florida which cannot be tolerated of a professional licensed

to dispense dangerous drugs.Ñ Id . at 27.

41. In Department of Health, Board of Medicine v. Brian

Lee , Case No. 15 - 4486PL (Fla. DOAH Dec. 2, 2015: Fla. DOH

Feb. 17, 2016), the licensee was convicted of charges similar to

the charges with which Petitioner was convicted, including

conviction as a sex offender. In prosecuting its case against

the physician, the Board of Medicine introduced the terms of the

physicianÓs community control, which included prohibiting him

from caring for or treating minors without notifying the minorÓs

parents of his sex offender status, and having another staff

person present; prohibiting him from having any other contact

with minors; and prohibiting him from using a computer unless

required for treatment of patients. The Board of Medicine

carried its burden to prove, by clear and convincing evidence,

that the physicianÓs crimes were related to his ability to

practice medicine. Id.

42. In the case at hand, the Board introduced no evidence

to tie RespondentÓs convictions to the practice of engineering,

although it was not required to prove the conviction related to

RespondentÓs technical ability to practice engineering. In f act,

Petitioner introduced no testimony whatsoever. The only

documentary evidence introduced was of PetitionerÓs arrest,

conviction, sentence (including probation), and Ms. AndersonÓs

investigative report. PetitionerÓs case relies solely on its

flawed le gal theory that RespondentÓs conviction demonstrates a

lack of good moral character, which it argues is sufficient

grounds for discipline.

43. Petitioner failed to carry its burden to prove the

allegations of Count I by clear and convincing evidence.

COUN T II

44. In Count II of the Administrative Complaint, Petitioner

charges Respondent with violating section 471.033(1)(a) by

violating the provisions of section 455.227(1)(t).

45. Section 471.033(1)(a), Florida Statutes, provides that

Ðviolating any provi sion of s. 455.227(1)Ñ constitutes grounds

for disciplinary action.

46. Section 455.227(1)(t), Florida Statutes, includes the

following as grounds for disciplinary action:

(t) Failing to report in writing to the

board or, if there is no board, to the

dep artment within 30 days after the licensee

is convicted or found guilty of, or entered a

plea of nolo contendere or guilty to,

regardless of adjudication, a crime in any

jurisdiction.

47. It is undisputed that Respondent failed to notify the

Board of his conviction within 30 days of the conviction as

required by 455.227(1)(t). Respondent therefore did not comply

with the plain language of the statute.

48. Petitioner carried its burden to prove the allegations

of Count II by clear and convincing evidence.

Penalty

49. Florida Administrative Code Rule 61G15 - 19.004 sets out

penalty guidelines for violations of the engineering licensing

statutes. For a first - time failure to report conviction of a

crime in any jurisdiction, the penalty range is a reprimand u p

to a $5,000 fine. Based upon the length of time that had passed

(238 days) before Respondent reported his conviction, his

attempt to comply with the reporting statute only after having

been informed that an investigation had been opened, and the

utter l ack of remorse demonstrated by Respondent during the

final hearing, the undersigned recommends the highest penalty in

the range -- a $5,000 fine -- be imposed. 4/

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Professional Engineers

enter a final order finding that Malcolm Watkins violated sections

455.227(1)(t) and 471.0 33(1)(a), Florida Statutes , and imposing a

fine of $5,000.

DONE AND ENTERED this 2nd day of May , 2017 , in Tallahassee,

L eon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www. doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of May , 2017 .

ENDNOTE S

1/ Except as otherwise provided herein, all references to the

Florida Statutes are to the 201 5 version.

2/ The Administrative Complai nt does not cite a date of the

Florida Statutes which is being applied. Petitioner was

convicted on July 17, 2015, thus the 2015 version of the

statutes must be applied.

3/ Nor did Petitioner cite any case interpreting the statutory

phrase Ða substantial connection between the lack of good moral

character of the applicant and the professional responsibilities

of a licensed engineer , Ñ which would be particularly relevant to

the question at hand.

4/ Petitioner offered no evidence of any aggravating factors

which may be considered in departing from the penalty

guidelines. See Fla. Admin. Code R. 61G15 - 19.004(3)(a).

C OPIES FURNISHED:

John Jefferson Rimes, Esquire

Florida Engineers Management Corporation

Suite B - 112

2639 North Monroe Street

Tallahassee, Fl orida 32303 - 5268

(eServed)

Malcolm T. Watkins, P.E.

DC No. H46813

Walton Correctional Institution (Male)

691 Institution Road

Defuniak Springs, Florida 32433

Zana Raybon, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

2639 North Monroe Street, Suite B - 112

Tallahassee, Florida 32303 - 5268

(eServed)

Lawrence D. Harris, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Jason Maine, Gener al Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

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.