98-001877 Board Of Professional Engineers vs. Craig J. Evans Status: Closed Recommended Order on Wednesday, December 30, 1998.

Summary: Engineer misplotted maps and issued a certificate erroneously stating the parcel was not in flood protection zone. Engineer was guilty of negligence. Recommend fine of $750.00.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 98-1877

)

CRAIG J. EVANS, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings

by its duly designated Administrative Law Judge, Mary Clark, held

a formal hearing in the above-styled case on October 21, 1998, in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Natalie A. Lowe, Esquire

Department of Business and

Professional Regulation

Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301-0750

For Respondent: E. Renee Alsobrook, Esquire

Post office Box 10426

Tallahassee, Florida 32302-0426

STATEMENT OF THE ISSUES

The issue for disposition in this proceeding is whether, as

alleged in an administrative complaint dated February 20, 1998,

Respondent Craig J. Evans committed negligence in the practice of

engineering when he erroneously determined that a real property

parcel was not within the flood protection zone. If that

violation occurred, an appropriate penalty must be recommended.

PRELIMINARY STATEMENT

Respondent disputed certain factual allegations of the

administrative complaint and the case was referred to the

Division of Administrative Hearings for formal hearing.

On June 19, 1998, pursuant to Section 471.038, Florida

Statutes, duties assigned to the Department of Business and

Professional Regulation regarding the Board of Engineers were

transferred to the Florida Engineers Management Corporation

(FEMC). The style of this case is amended to reflect that

change.

After one continuance at the request of the parties, the

hearing was held as described above.

At the hearing Petitioner presented the testimony of Fred

Varn and Nevins Smith. Petitioner's Exhibits nos. 1-8 were

received in evidence without objection. Petitioner's Exhibit

no. 8 is a deposition of George Simonof.

Respondent testified in his own behalf and presented the

additional testimony of Ted L. Biddy. Respondent's Exhibits

nos. 1-6 were received in evidence without objection. In

addition, at the request of Respondent and without objection by

Petitioner, the Administrative Law Judge took official

recognition of designated Leon County records and certain Final

Orders of the Board of Professional Engineering.

The transcript of hearing was filed on November 5, 1998; the

deposition transcript (Petition's Exhibit no. 8) was filed on

November 18, 1998; the parties' Proposed Recommended Orders were

filed on November 25 and November 30, 1998.

FINDINGS OF FACT

1. Respondent Craig J. Evans is and has been at all

material times a professional engineer licensed in the State of

Florida with license no. PE 0033652. He is currently practicing

as a professional engineer, and is licensed as such, in St.

Croix, U.S. Virgin Islands. In the approximate 15 years that

Mr. Evans has been licensed as a professional engineer, the

instant proceeding is the first disciplinary action or allegation

of professional wrong-doing.

2. In October 1992, Mr. Evans was engineer of record for a

residence being built for his father on a parcel now designated

as 1588 Chadwick Way, Tallahassee, Florida. On or about

October 10, 1992, Mr. Evans signed and sealed a Leon County Flood

Protection Certification for the Chadwick parcel in Killearn

Lakes, Unit 3, Lot 3, Block B M. This certification was a

necessary component of the local permitting process. In the

certification Mr. Evans stated that the parcel was at or above

the flood protection elevation.

3. After the certificate was filed and the building permit

was issued, Fred Varn, then a Leon County building inspector,

spoke to Mr. Evans about the inspector's concern that the floor

level of the house might be too low. Mr. Varn was aware that

some other properties in the area had flooded. Mr. Evans

responded that he felt the level was safe, but he was willing to

listen and he raised the floor level approximately 16 inches.

4. The house was built and Mr. Evans and his parents lived

in it for a short time. It rained during that time and according

to Mr. Evans, there was a little bit of flooding on the front of

the property and a little of standing water in the back, but

neither lasted long.

5. Mr. Evans' parents put the Chadwick house on the market

and Mr. and Mrs. George Simonof expressed an interest in

purchasing it. In response to the Simonof's surveyor's concerns

about flooding, Mr. Evans or his father faxed the

October 10, 1992, certification to the Simonofs on June 30, 1994.

The Simonofs, in turn, provided the certification to their

surveyor and lender.

6. On July 14, 1994, the Simonofs closed on their purchase

of the Chadwick house.

7. In early October 1994, Tallahassee experienced severe

rainstorms. Between October 6-12, 1994, the Simonof's property

on Chadwick flooded. With the help of friends and neighbors,

they filled sandbags and placed them around the house. The house

did not flood but the backyard was filled with standing water.

8. Contrary to Mr. Evans' certificate, the property on

Chadwick is within the flood protection zone. When he determined

the location of the flood zone, Mr. Evans scaled from Federal

Emergency Management Area (FEMA) maps to a plat map showing the

lot's location. He erred in the plotting process, a common

error, but one that a prudent engineer would be more careful to

avoid.

9. Initially, the Chadwick property appeared to Mr. Evans

to be in the flood zone, so he rechecked his work by pulling

certificates on two lots nearby and found they were not certified

in the flood zone either. He was somewhat familiar with the

property as he used to jog in the Killearn area. He had no

personal knowledge of flooding there prior to his certification.

10. Mr. Evans did not exercise due care in preparing his

flood zone certification and was negligent in the practice of

engineering. If he had checked his plotting, he would have

realized there should have been more distance between his 2100

and 1600 feet lines. Further, in close cases, a survey should

have been obtained. It was not sufficient that Mr. Evans

attempted to check his work against two certifications of other

lots in the area; he did not know the engineers who did the work

and could not be certain of their certificates' relevance or

accuracy. He did not speak with other property owners in the

area nor did he seek information from Leon County staff who would

be familiar with flooding problems.

11. To Mr. Evans' credit he raised the house elevation upon

query by the building inspector and the house did not flood.

However, the buyers of the property relied on his erroneous

certificate and suffered some loss due to the flooding.

CONCLUSION OF LAW

12. The Division of Administrative Hearings has

jurisdiction in this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

13. In license discipline cases such as this, the agency

must prove the allegations of its complaint with evidence that is

clear and convincing. Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987); Department of Banking and Finance v. Osborne Stern and

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

14. The agency has charged Mr. Evans with negligence in the

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

Florida Statutes, and Rule 61G15-19.001(4), Florida

Administrative Code. The referenced rule defines "negligence" as

the failure of 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.

"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."

15. The agency met its burden of proof in this case. Both

parties concede that the plotting error occurred. They and their

respective experts differ, however, on whether the error

constituted "negligence" within the meaning of the statute and

rule.

16. Both experts agreed that an engineer should check his

work; both agreed that in close cases a survey of the parcel

should be used to determine whether the property is within or

outside the flood protection area.

17. In similiar cases the Board of Engineers has assessed a

fine as penalty for violations of the relevant statute and rule.

The recommendation here is based on review of those cases

provided by Respondent. Petitioner's counsel has made no

suggestion for an appropriate penalty.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED: that the Board of Engineers issue its Final

Order finding Craig Evans guilty of negligence and assessing a

fine of $750.

DONE AND ENTERED this 30th day of December, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of December, 1998.

COPIES FURNISHED:

Natalie A. Lowe, Esquire

Department of Business and

Professional Regulation

Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301-0750

Dennis Barton, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

E. Renee Alsobrook, Esquire

Post Office Box 10426

Tallahassee, Florida 32302-0426

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.