99-002297 Florida Engineers Management Corporation vs. Allen A. Davis, P.E. Status: Closed Recommended Order on Tuesday, October 12, 1999.

Summary: By signing and sealing a portion of plans for which he had no expertise, professional engineer committed negligence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS )

MANAGEMENT CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 99-2297

)

ALLEN A. DAVIS, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on September 9,

1999, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Natalie A. Lowe, Esquire

Florida Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301-0750

For Respondent: Dennis K. Bayer, Esquire

Post Office Box 1505

Flagler Beach, Florida 32136-1505

STATEMENT OF THE ISSUE

The issue is whether Respondent's license as a professional

engineer should be disciplined for the reasons given in the

Administrative Complaint filed on March 30, 1999.

PRELIMINARY STATEMENT

This matter began on March 30, 1999, when Petitioner,

Florida Engineers Management Corporation, filed an Administrative

Complaint against Respondent, Allen A. Davis, a licensed

professional engineer, charging that he was negligent in the

practice of engineering while performing engineering work on a

project in June 1994. Respondent denied the allegation and

requested a formal hearing to contest the preliminary action.

The matter was referred by Petitioner to the Division of

Administrative Hearings on May 24, 1999, with a request that an

Administrative Law Judge be assigned to conduct a formal hearing.

By Notice of Hearing dated June 7, 1999, a final hearing was

scheduled on August 12, 1999, in Daytona Beach, Florida. At

Respondent's request, the matter was continued to September 9,

1999, at the same location.

At the final hearing, Petitioner presented the testimony of

Carlos Garcia, a professional engineer, who was accepted as an

expert in electrical engineering. Also, it offered Petitioner's

Exhibits 1 and 2. Both exhibits were received in evidence.

Respondent testified on his own behalf and offered Respondent's

Exhibit 1, which was received in evidence.

The Transcript of the hearing was filed on September 13,

1999. Proposed Findings of Fact and Conclusions of Law were

filed by Petitioner and Respondent on September 23 and 30, 1999,

respectively, and they have been considered by the undersigned in

the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. In this disciplinary action, Petitioner, Florida

Engineers Management Corporation (FEMC), seeks to impose penal

sanctions on the license of Respondent, Allen A. Davis, a

professional engineer, on the ground that he committed negligence

in the practice of engineering by signing and sealing the

electrical portion of a set of plans when he had no expertise in

that area of engineering. Respondent denies the allegation and

contends that when he signed and sealed that part of the plans,

he did not intend to hold himself out as an electrical engineer

or for anyone to rely upon the plans in that respect.

2. Respondent is a long-time licensed professional having

been issued Professional Engineer License No. 8986 on

September 15, 1961, by the Florida Board of Professional

Engineers. His current license is effective through February 28,

2001.

3. Respondent's specialty is as a structural engineer, and

he holds himself out as having expertise in only that specialty.

By experience gained over the years, however, he has a general

familiarity with most aspects of engineering, including

electrical engineering.

4. Upon graduation from college, Respondent worked for the

Florida Department of Transportation (DOT). After leaving DOT

some 20 years ago, he engaged in the engineering practice "in

various forms of housing construction, including subdivisions,

PUD's, house plans themselves, hydraulics and drainage projects

involved in civil works throughout." For the last 15 years, he

has also served as an engineering consultant for Volusia County.

Most recently, he has operated a "one-man shop" in Deland,

Florida, "checking, reviewing, and supervising production of

plans for houses and other structures involving buildings, and

[performing] some highway work [and] some traffic work."

5. Rule 61G15-23.002(2), Florida Administrative Code,

provides that whenever an engineer places his signature and seal

on a set of documents, the engineer is responsible for all work

contained in the documents. However, engineers are only required

to sign and seal that portion of a document for which they are

proficient. Under informal agency policy, which the FEMC's

expert says is based on a "common sense" interpretation of the

cited rule, any other drawings which are signed and sealed should

contain a disclaimer indicating that the engineer is not

responsible for the content which lies outside of his expertise.

Whether this policy was disseminated to engineers throughout the

state in 1994 is unknown.

6. One of Respondent's projects involved a two-story

residential home in Palm Harbor, Florida, being constructed by

Brattlof Construction Company, Inc. (Brattlof) in 1994. The

third page of the plans described the electrical floor plan for

the residence. In June 1994, Respondent signed and sealed that

page, even though this discipline was outside his specialty area,

and he failed to put a disclaimer on the sheet. As it turned

out, the electrical plan contained numerous deficiencies as

recited in paragraph 5 of the Administrative Complaint.

Respondent says he signed all pages of the plans since this was a

long-time practice of other professional engineers in the Volusia

County area.

7. An electrical draftsman for Brattlof actually prepared

the electrical plan. At that time, the Volusia County Building

Department required that before it would accept any building

plans, all pages had to be signed and sealed. Although the

record is not altogether clear, it appears that if a project was

"below 600 amp," a master electrician could sign that portion of

the plans. In this case, the house apparently fell into this

category. Even so, Respondent signed and sealed every page of

the drawings in order to file them with the local agency. By

doing so, Respondent unintentionally contravened the rule and

informal policy. Respondent pointed out, however, that Brattlof

later submitted a separate electrical plan prepared by the

electrical subcontractor as a part of the permit process. The

significance of this submission was not explained in the record.

8. According to Petitioner's expert, if an engineer is

faced with a situation where a signature and seal is required on

every page, he or she should engage the services of another

professional (an architect or engineer) with expertise in

electrical engineering, who could then review the plans and sign

and seal them.

9. In terms of mitigation, there is no evidence that

Respondent has ever been the subject of a disciplinary action

during his lengthy 38-year career as a licensed professional

engineer. In addition, there is no evidence that a third party

was injured, mislead, or adversely affected by relying on the

plans. The project can be considered "minor", no restitution was

required, and once this matter was brought to Respondent's

attention, he began the practice of placing a disclaimer on all

pages outside of his specialty. Finally, it can be inferred that

Respondent has high professional standing among his peers, given

the fact that he has testified as an expert around 500 times

since gaining licensure.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

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

11. As the party seeking to impose penal sanctions on

Respondent's professional license, Petitioner bears the burden

of proving the allegations in the charging document by clear and

convincing evidence. See , e.g. , Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987).

12. The Administrative Complaint charges that Respondent

was "negligent" in the practice of engineering within the meaning

of Section 471.033(1)(g), Florida Statutes. That statute makes

it unlawful for a professional engineer to commit negligence in

the practice of engineering.

13. Rule 61G15-23.002(2), Florida Administrative Code,

provides in relevant part as follows:

(2) A professional engineer may only seal an

engineering report, plan, print or

specification if that professional engineer

was in responsible charge of the preparation

and production of the engineering document

and the professional engineer has the

expertise in the engineering discipline used

in producing the engineering document in

question.

15. By clear and convincing evidence, Petitioner has

established that Respondent signed and sealed a portion of

engineering plans for which he had no expertise. By doing so,

Respondent unintentionally violated Rule 61G15-23.002(2), Florida

Administrative Code, which in turn constitutes negligence within

the meaning of Section 471.033(1)(g), Florida Statutes. Compare

Bd. of Prof. Engrs. v. Whittum , Case No. 94-1600 (Bd. of Prof.

Engrs., Aug. 28, 1995)(by signing and sealing plans without

knowledge of site location, engineer committed negligence).

Therefore, the charge in the Administrative Complaint has been

sustained.

16. In its proposed order, FEMC does not suggest that a

specific penalty be imposed on Respondent. Rule 61G15-19.004,

Florida Administrative Code, however, sets forth the disciplinary

guidelines and range of penalties for statutory violations.

Among other things, where negligence has been proven,

paragraph (1)(m) of the rule calls for a minimum penalty of a

reprimand, two years' probation, and $1,000.00 fine. The same

paragraph also prescribes a maximum penalty of a reprimand, a

$1,000.00 fine, 5 years' suspension, and 10 years' probation.

Under paragraph (3)(b) of the rule, a downward deviation from the

minimum penalty is justified if mitigating circumstances are

present.

17. Because a number of mitigating circumstances are

present here, as recited in Finding of Fact 9, the violation was

unintentional, and FEMC's informal policy was not widely

disseminated in 1994, a reprimand is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Professional Engineers enter

a final order finding Respondent guilty of violating

Section 471.033(1)(g), Florida Statutes, and that he be given a

reprimand.

DONE AND ENTERED this 12th day of October, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

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 12th day of October, 1999 .

COPIES FURNISHED:

Dennis Barton, Executive Director

Florida Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301-0500

Natalie A. Lowe, Esquire

Florida Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301-0500

Dennis K. Bayer, Esquire

Post Office Box 1505

Flagler Beach, Florida 32136

Barbara D. Auger, 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.