99-003766 Department Of Business And Professional Regulation, Florida Engineers Management Corporation vs. Charles C. Stokes, P.E. Status: Closed Recommended Order on Friday, June 2, 2000.

Summary: Agency proved that Respondent violated statutes related to conflict of interest and was negligent in the design of a structure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 99-3766

)

CHARLES C. STOKES, P.E., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on March 23-24,

2000, by Stephen F. Dean, assigned Administrative Law Judge of

the Division of Administrative Hearings, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Natalie A. Lowe, Esquire

Florida Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301-0750

For Respondent: Charles C. Stokes, P.E., pro se

35 Oats Road

Cottonwood, Alabama 36320

STATEMENT OF THE ISSUES

The issues to be resolved are whether the Respondent

engaged in misconduct by involving himself in a conflict of

interest and failing to take appropriate action; and whether

Respondent was negligent in the practice of engineering.

PRELIMINARY STATEMENT

This case was initiated by the filing of a six-count

Administrative Complaint against the Respondent. The Respondent

requested a formal hearing and the case was referred to the

Division of Administrative Hearings on September 7, 1999.

An Initial Order was sent out on September 9, 1999, and a

unilateral response received on September 20, 1999 from the

agency. A Notice of Hearing was sent out on October 8, 1999,

setting the case for hearing on March 23 and 24, 2000 in

Tallahassee.

On January 20, 2000, Petitioner filed a Motion to Deem

Admitted, to which the Respondent filed a Motion to Strike on

February 22, 2000. The motions were not heard because of the

difficulties in contacting Respondent.

On March 17, 2000, the Petitioner filed an objection to

Respondent's Motion for a Continuance, which was the first

indication the Division had that Respondent had filed a Motion

to Continue. The Administrative Law Judge requested Petitioner

to forward a copy of the Respondent's Motion, and Petitioner's

counsel forwarded Respondent's Motion for Continuance and Motion

to Compel Discovery.

Upon receipt of these papers, the Motion for Continuance

was considered and denied as untimely, having been brought to

the attention of the Administrative Law Judge on March 17, 2000,

with regard to a hearing scheduled for March 23, 2000.

Continuances at this phase of proceedings are granted over

objection only for severe emergencies.

The reason for the r equested continuance was to permit

Respondent to complete discovery in a case which was initiated

in September and noticed in October, five months earlier. At

hearing, the Respondent admitted he had not served discovery

requests on Counsel for Petitioner. After hearing a re-

recitation of the motion for continuance at hearing, there was

no reason shown to continuing the proceedings.

During the two-day hearing, the Petitioner called three

witnesses and entered 12 exhibits into the record. The

Respondent testified in his own behalf; called one witness; and

entered 24 exhibits into the record.

After the hearing, the Petitioner filed a packet of

"supplemental" exhibits and motions. The exhibits are an

attempt to place additional evidence into the record after the

conclusion of the hearing and are disregarded. The accompanying

motions are an attempt to raise the motion for continuances

again. It is untimely, and will not be considered having been

mooted by the hearing.

After the hearing, the Petitioner fil ed a Notice of

Voluntary Dismissal of Counts 2, 3, and 4, and a Proposed

Recommended Order. This was read and considered. The

Respondent filed a Amicus Curiae Brief, which was read and

considered.

FINDINGS OF FACT

1. The Board of Professional Engineers is charged with

regulating the practice of engineering pursuant to Chapter 455,

Florida Statutes and Chapter 471, Florida Statutes.

2. The Respondent is charged with providing

administrative, investigative, and prosecutorial services to the

Board of Professional Engineers pursuant to Section 471.038(4),

Florida Statutes (1997).

3. The Respondent is a licensed professional engineer in

the State of Florida and holds license number PE 29985.

4. Mr. Dan Alford is the licensed community assistant

manager for the Tropical Breeze Resort Association, hereinafter

referred to as "the Association."

5. In 1997, the Association was seeking a professional

engineer or an architect to rebuild a building that had been

destroyed by Hurricane Opal.

6. The Respondent made a presentation to the Association.

Because he was the low bidder and was recommended by a Board

Member of the Association, the Respondent was selected.

7. In July 1997, Charles Stokes Engineering entered into

an agreement with the Association to act as the Engineer of

Record and Threshold Inspector for a project identified as the

Tropical Breeze Resort (the project). The Respondent was the

responsible engineer for Charles Stokes Engineering, a

corporation.

8. In addition, the Respondent was to provide Construction

Management services for the project.

9. His responsibilities included letting out bids for the

project to subcontractors, overseeing the bidding process, and

overseeing the work through construction.

10. In September 1997, the Petitioner notified the

Association that Richardson Land Clearing was the apparent low

bidder for Demolition and Site Preparation on the project.

11. In October 1997, the Petitioner informed the

Association that Shoreline Construction and Engineering was the

low bidder for construction of the seawall for the project.

12. In October 1997, the Association entered into a

contractor agreement with Shoreline Construction and Engineering

for construction of the seawall.

13. The Respondent signed on behalf of the contractor and

indicated he was the director of Shoreline Engineering and

Construction.

14. The Respondent listed his professional engineer's

license number where the agreement requested a contractor's

state license number.

15. In October 1997, the Association entered into a

contractor agreement with both Richardson Land Clearing and

Shoreline Construction for Demolition and Site Preparation.

16. The Respondent signed as the contractor for Richardson

Landclearing and listed his professional engineer's license

number where the agreement requested a contractor's state

license number.

17. The Respondent also signed as the contractor for

Shoreline Construction and Engineering and identified himself as

director of the corporation.

18. The Respondent does not have a State of Florida

license as a general contractor.

19. Shoreline Construction and Engineering, Inc. is

registered in the state of Florida as an engineering business.

20. According to Ms. Jeannie Carlton, a member of Board

staff, the Respondent is listed in Shoreline's application as

the Secretary and the Registered Principal Officer.

21. The Respondent failed to disclose to the Association

his position in Shoreline Construction and Engineering. He did

not reveal any interest in Richardson Landclearing to the

Association.

22. James O. Power, P.E., is a structural engineer who has

been licensed in the state of Florida since 1947. He has over

47 years of structural engineering experience.

23. Since 1980, he has been a consultant to the Department

of Business and Professional Regulation in various professions

including engineering, architecture, and contractors.

24. Mr. Power was proffered and accepted as an expert in

structural engineering.

25. According to James Power, P.E., the Respondent's

obligation was primarily to his client, the Association, as the

construction manager of the project.

26. In contrast, a contractor, within the limits of the

contract, is free to do what is in his own best interest.

27. The Respondent's position as Construction Manager and

his position as an officer of Shoreline Construction and

Engineering, Inc. created a conflict of interest for Respondent

with his client.

28. The Respondent's conflict of interest was not

unavoidable. Respondent failed to:

(a) Disclose in writing to the Association

the full circumstances of the possible

conflict of interest,

(b) Assure the Association that the

conflict would in no manner influence his

professional engineering judgment or the

quality of his services to the Association,

and

(c) Promptly inform the Association of his

business association interest or

circumstances which might influence his

judgment or quality of this services.

29. The Construction Drawings, signed and sealed by the

Respondent on July 16, 1998, were examined by Mr. Power.

30. The plans examined by Mr. Power contained many

deficiencies.

31. The Respondent signed and sealed this set of

engineering plans on July 16, 1998.

32. The Respondent testified in his own behalf. He

indicated that plans examined by Mr. Power were prepared for

various building officials and permitting authorities. Although

they are sealed by the Respondent, they are not final plans, as

changes were made to satisfy the objections of the various

building officials. The plans examined by Power were sufficient

to permit contractors to bid on the job and to obtain approval

from the building officials and permitting authorities.

However, the Respondent did not prepare and submit final

drawings until very late in the process. These plans were on a

compact disk.

33. On July 18, 1998, the Respondent billed the

Association for $22,400, the amount agreed upon for a complete

set of plans. However, this amount was not paid. The code to

access the disk was not provided to the Association.

34. The Respondent testified regarding his relationship in

Shoreline. He was hired by Shoreline after the Shoreline/

Association Contract to consult on clearing buried debris which

was delaying construction.

35. The Respondent did not advise the Association of this

relationship.

36. The Respondent testified regarding his signing of the

contracts with Shoreline and Richardson. The Respondent's

testimony was not credible.

37. Mr. Power identified several deficiencies regarding

the plans submitted by the Respondent. The Petitioner says the

plans introduced by the Respondent were not the final, approved

plans, but a work in progress having been prepared and refined

for the various permitting authorities. The Petitioner

testified that such plans must be "sealed" to meet the

requirements of the permitting authorities; however, Mr. Power

testified that such plans should contain a stamp or comment

limiting their use. Mr. Power's testimony was credible

regarding the necessity for such a caveat.

38. The Association never paid for the finished drawings.

39. The final drawings are on a compact disk which cannot

be opened without the password. Testimony conflicts about

whether the password was provided to the Association. However,

this is immaterial because the Association has not paid for the

plans. There is no reason for the Respondent to open them and

make them usable by the Association.

40. Although the plans introduced at hearing were not

complete, they should have contained details regarding the

column system and beam system for the second story if they did

not carry a use limitation clearly stated on the plans.

41. Mr. Power testified regarding the deficiencies of the

column system and the beams on the second floor connecting to

the columns. His testimony was credible. The element of the

Respondent's design were insufficient.

42. In summary, the Petitioner showed that the Respondent

improperly represented parties whose interest were or could be

conflicting. This was not necessary and should have been

avoided.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

44. The Petitioner must prove the charges contained in its

Administrative Complaint by clear and convincing evidence.

45. The Respondent engaged in misconduct by failing to

disclose his position in Shoreline Construction and Engineering

prior to signing a contract with the Tropical Breeze Resort.

46. The Respondent engaged in misconduct when he involv ed

himself in a conflict of interest and failed to take the steps

outlined in Rule 61G15-19.001(6)(f), Florida Administrative

Code.

47. The Board defines misconduct in the practice of

engineering in Rule 61G15-19.001(6)(f), Florida Administrative

Code, to include the following:

becoming involved in a conflict of interest

with and employer or client, without the

knowledge and approval of the client or

employer, but if unavoidable a professional

engineer shall immediately take the

following steps:

1. Disclose in writing to his employer or

client the full circumstances as to a

possible conflict of interest; and

2. Assure in writing that the conflict will

in no manner influence the professional

engineer's judgement or the quality of his

services to his employer or client; and

3. Promptly inform his client or employer

in writing of any business association,

interest or circumstances which may be

influencing his judgement or the quality of

his services to his client or employer.

48. Counts 2, 3, and 4 were voluntarily dismissed. The

Respondent's designs of the first floor columns and beams for

the second story were deficient as alleged in Count 6. This

constitutes a violation of Section 471.033(1)(g), Florida

Statutes.

Mitigation

49. The Respondent testified that he had been and

continued to be seriously ill with an infection of the sinuses

which had debilitated him. This had impacted his work forcing

him to severely limit his practice.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Board of Professional Engineers enter its final order

revoking the Respondent's license.

DONE AND ENTERED this 2nd day of June, 2000, in

Tallahassee, Leon County, Florida.

_ __________________________________

STEPHEN F. DEAN

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 2nd day of June, 2000.

COPIES FURNISHED:

Natalie A. Lowe, Esquire

Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301

Charles C. Stokes, P.E.

35 Oats Road

Cottonwood, Alabama 36320

Dennis Barton, Executive Director

Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301

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.