04-003983PL Florida Engineers Management Corporation vs. Jose G. Puig, Jr., P.E. Status: Closed Recommended Order on Tuesday, April 5, 2005.

Summary: The evidence was insufficient to establish that Respondent, a licensed professional engineer, signed and sealed plans not prepared under his supervision or that he aided and assisted in the unlicensed practice of engineering.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS )

MANAGEMENT CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3983PL

)

JOSE G. PUIG, JR., P.E., )

)

Respondent. )

)

RECOMMENDED ORD ER

Pursuant to notice, a hearing was conducted in this case on

February 14, 2005, by video teleconference at sites in Miami and

Tallahassee, Florida, before Stuart M. Lerner, a duly - designated

Administrative Law Judge of the Division of Administrative

Hea rings (DOAH).

APPEARANCES

For Petitioner: Bruce A. Campbell, Esquire

Florida Engineers Management Corporation

2507 Calloway Road, Suite 200

Tallahassee, Florida 32303 - 5267

For Respondent: Samuel B. Re iner, II, Esquire

9100 South Dadeland Boulevard, Suite 1408

Miami, Florida 33156 - 7816

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Complaint issued against him and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On September 30, 2004, Petitioner issued a four - count

Administrative Complaint against Respondent, which read as

follows:

1. Petitioner is charged with providing

administrative, investigative, a nd

prosecutorial services to the Board of

Professional Engineers pursuant to Section

471.038, Florida Statutes. The Board of

Professional Engineers is charged with

regulating the practice of engineering

pursuant to Chapter 455, Florida Statutes.

2. Resp ondent is and has been at all time

material hereto a licensed professional

engineer in the State of Florida, having

been issued license number PE 49148.

Respondent's last known address is 9300 N.W.

25th Street, Suite 210, Miami, Florida

33172.

3. The Re spondent is the owner of JGP

Engineering Group PA, a licensed engineering

firm located two suites from N

Naranjoˋ⡲⚭ Mechanical Electrical

Engineers, located at 9300 N.W. 25th Street,

#209, Miami, Florida.

4. On September 20, 2001, Mr. Naranjo's

professional engineer's license was revoked.

COUNT ONE

5. Petitioner realleges and incorporates

paragraphs one (1) through four (4) as if

fully set forth in this Count One.

6. On or about February 25, 2003,

Respondent signed and sealed calculations

a nd 4 sheets of mechanical plans for a

project known as Toras Emes Academy.

7. The contract for performance of

mechanical engineering services for Toras

Emes Academy had been entered into by

Orlando Naranjo and all payments for the

project were made payab le to Naranjo and

Associates.

8. The border of the mechanical plan sheets

for Toras Emes Academy provides a record

that the sheets were drawn by employees of

Naranjo and Associates and checked by

Orlando Naranjo.

9. All documentation of calculations, s ite

visits, research and the like with respect

to the Toras Emes project were maintained in

the office of Naranjo and Associates, and

not in Respondent's office.

10. Respondent did not receive compensation

for his services with respect to Toras Emes

Acad emy.

11. Respondent was not in responsible

charge of the efforts of Orlando Naranjo

with respect to the plans and calculations

prepared for Toras Emes Academy.

12. Based on the foregoing, Respondent

violated Section 471.033(1)(j), Florida

Statutes, [by ] affixing or permitting to be

affixed his seal, name, or signature to

final drawings that were not prepared by him

or under his responsible supervision,

direction, or control.

COUNT TWO

13. Petitioner realleges and incorporates

paragraphs one (1) throu gh four (4) as if

fully set forth in this Count [Two].

14. Based on the foregoing, Respondent

violated Section 471.033(1)(a), Florida

Statutes, by violating Section

455.227(1)(j), Florida Statutes, by aiding

and assisting an unlicensed person to

practice engineering.

COUNT THREE

15. Petitioner realleges and incorporates

paragraphs one (1) through four (4) as if

fully set forth in this Count Three

16. On or about October 1, 2003, Respondent

signed and sealed mechanical plan sheets for

a project known as Manatee Village at

Ruskin, FL.

17. The contract for performance of

mechanical engineering services for Manatee

Village at Ruskin, FL, had been entered into

by Orlando Naranjo and all payments for the

project were made payable to Naranjo and

Associates .

18. The cover of the plan sheets for

Manatee Village at Ruskin, FL, lists Naranjo

and Associates as the mechanical engineer.

19. All documentation of calculations, site

visits, research and the like with respect

to the Manatee Village at Ruskin proje ct

were maintained in the office of Naranjo and

Associates and not in Respondent's office.

20. Respondent did not receive compensation

for his services with respect to Manatee

Village at Ruskin, FL.

21. Respondent was not in responsible

charge of the e fforts of Orlando Naranjo

with respect to the plans and calculations

prepared for Manatee Village at Ruskin, FL.

22. Based on the foregoing, Respondent

violated Section 471.033(1)(j), Florida

Statutes, [by] affixing or permitting to be

affixed his seal, name, or signature to

final drawings that were not prepared by him

or under his responsible supervision,

direction, or control.

COUNT FOUR

23. Petitioner realleges and incorporates

paragraphs one (1) through four (4), and

sixteen (16) through twenty - one (21), as if

fully set forth in this Count Four.

24. Based on the foregoing Respondent

violated Section 471.033(1)(a), Florida

Statutes, by violating Section

455.227(1)(j), by aiding and assisting an

unlicensed person to practice engineering.

WHEREFORE, the Petitioner respectfully

requests the Board of Professional Engineers

to enter an order imposing one or more of

the following penalties: permanent

revocation or suspension of the Respondent's

license, restriction of the Respondent's

practice, impositi on of an administrative

fine, issuance of a reprimand, placement of

the Respondent on probation, the assessment

of costs related to the investigation and

prosecution of this case, other than costs

associated with an attorney's time, as

provided for in Sect ion 455.227(3), Florida

Statutes, and/or any other relief that the

Board deems appropriate.

On November 1, 2004, Respondent "request[ed] a formal

hearing [on the matter] be conducted pursuant to Sections

120.569 and 120.57(1), Florida Statutes." Along w ith his

hearing request, he filed, through his attorney, an Answer to

the Administrative Complaint, in which he stated, among other

things, the following:

Respondent . . . states that he was in

responsible charge and exercised responsible

supervision over all plans for the projects

referred to in Administrative Complaint for

which Respondent sealed. More specifically,

Respondent reviewed, revised, and approved

all plans for the projects referred to in

the Administrative Complaint for which

Respondent seale d. At no time did

Respondent aid or assist in the unlicensed

practice of Engineering, but merely

succeeded to the responsible completion of

projects for architects involved based upon

Mr. Naranjo's inability to do so.

Respondent completed the work with

e xpectation [sic] of realizing compensation

for the work performed. Further, the

architects involved have, or will,

corroborate Respondent's responsible

supervision and charge over the completion

of the projects involved.

WHEREFORE, Respondent requests a formal

administrative hearing with respect to the

disputed facts as set forth infra , an order

dismissing the Administrative Complaint, and

all other relief, including attorney's fees

and costs for this defense pursuant to §

120.569[(2)](e) and any other ap plicable

statute or code section, deemed just an[d]

proper.

On November 3, 2004, the matter was referred to DOAH.

On February 7, 2005, the parties filed a Joint Prehearing

Submission, which provided, in pertinent part, as follows:

A. STATEMENT OF THE CON TROVERSY

Whether Respondent committed the acts or

omissions alleged in the Administrative

Complaint and whether those acts and

omissions constitute the violations alleged;

and, if so, what penalty should be imposed.

B. BRIEF, GENERAL STATEMENT OF EACH P ARTY'S

POSITION

1. Petitioner's Position:

It is the Petitioner's position that

Respondent's license as a Professional

Engineer should be subject to disciplinary

action as a result of violations of Sections

471.033(1)(j), 471.033(1)(a), and

455.227(1)(j) , Florida Statutes, as alleged

in the complaint.

2. Respondent's Position:

It is Respondent's position that he did not

violate the Florida Statutes. Respondent

was in responsible charge and exercised

responsible supervision over all plans

referred to i n the complaint and . . .

Respondent did not aid or assist in the

unlicensed practice of engineering all as

alleged in the Answer. Respondent has

claimed attorney's fees if he prevails.

* * *

E. STATEMENT OF THOSE FACTS WHICH ARE

ADMITTED

1. At all times material to the allegations

in the Administrative Complaint, Respondent

was a licensed Professional Engineer.

2. Respondent is a licensed professional

engineer in the State of Florida, having

been issued license number PE 4 9148.

3. Respondent has maintained an engineering

office at 9300 N.W. 25th Street, Suite 210,

Miami, Florida at all times relevant to the

Complaint.

4. Naranjo and Associates had an office at

Suite 209 of the same address.

5. On or about February 25, 2003,

Respondent signed and sealed calculations

and 4 sheets of mechanical plans for a

project known as Toras Emes Academy.

6. On or about October 1, 2003, Respondent

signed and sealed mechanical plan sheets for

a project known as Manatee Village at

Rus kin.

7. On the plans for . . . Toras Emes

Academy, the initials "ON" refer to Orlando

Naranjo.

8. On the plans for Toras Emes Academy, the

initials "PV" refer to Pablo Viteri.

9. On the plans for Toras Emes Academy, the

initials "AN" refer to Antia R odriguez.

10. On the plans for Manatee Village at

Ruskin, the initials "PV" refer to Pablo

Viteri.

11. On the plans for Manatee Village at

Ruskin, the initials "ON" refer to Orlando

Naranjo.

12. On the plans for Manatee Village at

Ruskin, the initial s "AN" refer to Antia

Rodriguez.

13. From September 2001, through January

2004, Orlando Naranjo was not an employee of

Respondent or JGP Engineering Group.

14. Before August 2003, Pablo Viteri was

not an employee of Respondent or JGP

Engineering Group.

15. Before December 2003, Antia Rodriguez

was not an employee of Respondent or JGP

Engineering Group.

F. ISSUES OF LAW ON WHICH THERE IS AGREMENT

1. Petitioner is the agent of the State of

Florida charged with providing investigative

and prosecutori al services to the Florida

Board of Professional Engineers, pursuant to

Section 471.039, Florida Statutes. The

Florida Board of Professional Engineers is

charged with regulating the practice of

engineering pursuant to Chapters 455 and

471, Florida Statute s.

2. The Division of Administrative Hearings

has jurisdiction over the parties and the

subject matter of this proceeding pursuant

to Section 120.57, Florida Statutes.

3. Petitioner must establish by clear and

convincing evidence the violation of Chap ter

471, Florida Statutes, alleged in the

Administrative Complaint.

G. ISSUES OF FACT WHICH REMAIN TO BE

LITIGATED

All facts in the Administrative Complaint

not stipulated to above.

* * *

As noted above, the final hearing in this case was held on

February 14, 2005. 1 Six witnesses testified at the hearing:

Paul Siddal; Gustavo Ramos; Angela Jacobs; Orlando Naranjo;

Pablo Viteri; Jose G. Puig, Sr.; and Respondent. In addition to

these six witnesses' testimony, 11 exhibits (J oint Exhibits 1

and 2, Petitioner's Exhibits 1 through 4 and 6, and Respondent's

Exhibits 1 through 4) were offered and received into evidence.

Following the close of the evidence, but before the

conclusion of the hearing, the undersigned established a

dea dline (ten days from the date of the filing of the hearing

transcript with DOAH) for the filing of proposed recommended

orders.

The hearing transcript (consisting of one volume) was filed

with DOAH on March 14, 2005.

On March 17, 2005, Respondent, on beh alf of both parties,

filed a motion requesting an extension of the deadline for the

filing of proposed recommended orders. By order issued that

same day, the motion was granted and the parties were given

until March 28, 2005, to file their proposed recomm ended orders.

Petitioner and Respondent filed their Proposed Recommended

Orders on March 29, 2005, and March 30, 2005, respectively.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made to supplement

and clarify the factual stipulations set forth in the parties'

February 7, 2005 Joint Prehearing Submission 2 :

1. Respondent and his father are the principal owners of

J.G.P. Engineering Group P.A. (JGP), an engineering firm

specializing in the design of mechanical, electrical, and

plumbing systems.

2. JGP does mainly "high end projects."

3. It has offices in Miami, Florida, and San Juan, Puerto

Rico.

4. Respondent is in charge of JGP's Miami office. The

office is located at 9300 Nor thwest 25th Street, Suite 207.

Before moving to this location, JGP occupied Suite 210 in the

same building.

5. In or around the mid - 1990's, Orlando Naranjo was

invited to work as an electrical engineer for JGP in its Miami

office. Mr. Naranjo wanted to remain self - employed, so he

turned down the offer; however, his firm and JGP subsequently

worked collaboratively on "quite a few projects."

6. Mr. Naranjo's firm and JGP were "doing so much work

[together] requiring significant coordination" that in or around

1998, Mr. Naranjo decided "to move [his office to 9300 Northwest

25th Street, Suite 209] next to [JGP's office]." Mr. Naranjo's

office was at this location (9300 Northwest 25th Street, Suite

209) at all times material to the instant case.

7. O n September 20, 2001, Mr. Naranjo's license to

practice engineering in the State of Florida (which was then

under suspension) was revoked by the Florida Board of

Professional Engineers (Board). The suspension and revocation

resulted from Mr. Naranjo's hav ing failed to have taken the

necessary steps to renew his license in a timely manner.

8. Mr. Naranjo did not become aware of the Board's

revocation action until "some time later," around or before the

Thanksgiving holiday (that same year).

9. Upon le arning that his license had been revoked,

Mr. Naranjo began the process of attempting to become

relicensed.

10. Mr. Naranjo's office (at 9300 Northwest 25th Street,

Suite 209) remained open, and his firm continued to engage in

business, following the revocation of his license and during the

time that he was seeking relicensure.

11. Mr. Naranjo recognized that, until he got his license

back, he would be unable to sign and seal documents and

otherwise act as the "engineer of record" on projects.

12. M r. Naranjo therefore asked Respondent to help him by

assuming the role of "engineer of record" on projects that

Mr. Naranjo had been working on but had not yet completed.

13. As a favor to Mr. Naranjo, Respondent agreed to do so

without compensation.

14. Among the projects of Mr. Naranjo's that Respondent

undertook responsibility for were (what the parties have

referred to in their February 7, 2005, Joint Prehearing

Submission as) the Toras Emes project (TE Project) and the

Manatee Village at Ruskin proj ect (MV Project).

15. "[C]ompared to the jobs that [JGP] had done with

[Mr. Naranjo] in the past, these two jobs . . . [were]

relatively straightforward."

16. The TE Project involved design work for a dormitory

facility consisting of "individual dormi tory rooms, a hallway

[connecting] them, and a common bathroom [with] showers and

stalls for the people [living] in the dormitory."

17. The architectural firm that hired Mr. Naranjo to work

on the TE Project was Gustavo J. Ramos and Associates, Inc.

(Ra mos).

18. Ramos had a contractual relationship with, and paid,

Mr. Naranjo, not Respondent, for the work done on the TE

Project.

19. The MV Project involved design work for a residential

housing development consisting of four types of "small apartment

units [having] one or two bedrooms."

20. The architectural firm that hired Mr. Naranjo to work

on the MV Project was R.E. Chisholm Architects, Inc. (Chisholm).

21. Chisholm had a contractual relationship with, and

paid, Mr. Naranjo, not Respondent, f or the work done on the MV

Project.

22. The MV Project required "relatively little" work since

approximately "99% [of the plans that had been developed for use

in a previous project] were reused" for this project.

23. Assisting in the preparation of the plans for the TE

Project and the MV Project were Mr. Naranjo's employees, Pablo

Viteri and Antia Rodriguez, who (unlike Respondent) were paid by

Mr. Naranjo for their efforts in connection with the projects.

Mr. Viteri and Ms. Rodriguez served as draftspe ople on these

projects, drafting in accordance with the directions they

received, as did Mr. Naranjo after he had relinquished his role

as "engineer of record" on these projects (and Respondent had

started "running the show"). In addition to the drafting work

he did, Mr. Viteri was regularly "in touch" with the "people who

were involved [o]n the architectural side" of the projects to

"coordinate" with them.

24. Mr. Viteri became a Florida - licensed professional

engineer in the "beginning of 2003." (He i s currently employed

by JGP as an electrical engineer and computer - aided design

manager.)

25. Ms. Rodriguez was an engineer in her native country,

but has not obtained a license to practice engineering in the

State of Florida.

26. Mr. Viteri, Ms. Rodr iguez, and Mr. Naranjo, at all

times material to the instant case, worked (on the TE Project

and the MV Project ) out of Mr. Naranjo's office at 9300

Northwest 25th Street, Suite 209, which outside its front door

had a sign which read:

N

NARANJOĤ OCIATES

Mechanical · Electrical

Consulting Engineers

#209

27. The sign had been there since the time Mr. Naranjo had

moved into the office. It remained on the door even though

Mr. Naranjo's license had been revoked and he was no longer

authorized to eng age in the practice of engineering in the State

of Florida.

28. The purpose of the sign was not to advertise, but to

identify who occupied the office.

29. Following his agreement to help Mr. Naranjo,

Respondent exercised complete supervision, directio n, and

control of all engineering aspects of the TE Project and the MV

Project, including the preparation of the engineering plans for

these projects (that he signed and sealed).

30. Upon assuming the role of "engineer of record" on

these projects, Respon dent first reviewed the design work that

had been done prior to his involvement in the projects to

determine if the "quality and validity" of the work met his

satisfaction.

31. After completing this review, Respondent oversaw the

completion of the design work, making all necessary engineering

decisions.

32. Respondent had discussions with Mr. Viteri,

Ms. Rodriguez, and Mr. Naranjo about the remaining work that

needed to done and gave them instructions and directions on the

drafting they were to do.

33. Respondent reviewed their finished work product to

make sure that it was consistent with the instructions and

directions he had given them.

34. Only after he was satisfied that there was such

consistency and that the drafting that had been done accurate ly

reflected the engineering decisions he had made did Respondent

sign and seal the plans for the projects.

35. The title block on these plans identifying Respondent

as the projects' mechanical engineer listed his address as 9300

Northwest 25th Street, Su ite 209, Miami, Florida (which was the

address of Mr. Naranjo's office) and his telephone number and

fax number as (305) 599 - 9447 and (305) 599 - 9427, respectively

(which were the telephone number and the fax number for

Mr. Naranjo's office).

36. All engin eering documents related to the projects were

kept, not in Respondent's office, but in Mr. Naranjo's office

(where Mr. Naranjo, Mr. Viteri, and Ms. Rodriguez worked) so as

to not inconvenience Mr. Viteri, who needed to have ready access

to these documents on a regular basis given that he was the

"person who had the direct day - to - day contact" with the project

architects.

37. Likewise, the calculations done for the TE Project

were on a computer in Mr. Naranjo's office.

38. Any documents or information that Respondent needed to

fulfill his responsibilities as the "engineer of record" on the

TE Project and the MV Project he could retrieve with relative

ease from Mr. Naranjo's office, which was just a short distance

from his office.

39. At no time did R espondent attempt to conceal from

anyone the nature and extent of his involvement in the TE

Project and the MV Project, nor did he have any intent to assist

Mr. Naranjo in the unlicensed practice of engineering.

40. Respondent has never before been discip lined by the

Board.

CONCLUSIONS OF LAW

41. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

42. In Florida, the practice of engineering is regulated

by the provisions o f Chapters 455 and 471, Florida Statutes.

43. "Engineering," as that term is used in Chapter 471,

Florida Statutes, is defined in Section 471.005(7), Florida

Statutes, as follows:

"Engineering" includes the term

"professional engineering" and means any

se rvice or creative work, the adequate

performance of which requires engineering

education, training, and experience in the

application of special knowledge of the

mathematical, physical, and engineering

sciences to such services or creative work

as consulta tion, investigation, evaluation,

planning, and design of engineering works

and systems, planning the use of land and

water, teaching of the principles and

methods of engineering design, engineering

surveys, and the inspection of construction

for the purpos e of determining in general if

the work is proceeding in compliance with

drawings and specifications, any of which

embraces such services or work, either

public or private, in connection with any

utilities, structures, buildings, machines,

equipment, proce sses, work systems,

projects, and industrial or consumer

products or equipment of a mechanical,

electrical, hydraulic, pneumatic, or thermal

nature, insofar as they involve safeguarding

life, health, or property; and includes such

other professional servic es as may be

necessary to the planning, progress, and

completion of any engineering services. A

person who practices any branch of

engineering; who, by verbal claim, sign,

advertisement, letterhead, or card, or in

any other way, represents himself or hers elf

to be an engineer or, through the use of

some other title, implies that he or she is

an engineer or that he or she is licensed

under this chapter; or who holds himself or

herself out as able to perform, or does

perform, any engineering service or work or

any other service designated by the

practitioner which is recognized as

engineering shall be construed to practice

or offer to practice engineering within the

meaning and intent of this chapter.

44. Section 471.003(1), Florida Statutes, provides that

"[n] o person other than a duly licensed engineer shall practice

engineering or use the name or title of 'licensed engineer,'

'professional engineer,' or any other title, designation, words,

letters, abbreviations, or device tending to indicate that such

pe rson holds an active license as an engineer in this state."

See also § 471.031(1)(a), Fla. Stat. ("A person may not:

Practice engineering unless the person is licensed or exempt

from licensure under this chapter.").

45. Section 471.003(2), Florida Stat utes, enumerates those

persons "not required to be licensed under the provisions of

this chapter as a licensed engineer." These exempted persons

include "[e]mployees of a firm, corporation, or partnership who

are the subordinates of a person in responsibl e charge, licensed

under this chapter." § 471.003(2)(e), Fla. Stat.

46. "Responsible charge, as that term is used in Chapter

471, Florida Statutes, and the rules promulgated thereunder, is

defined in Florida Administrative Code Rule 61G15 - 18.011(1) as

follows:

(1) "Responsible Charge" shall mean that

degree of control an engineer is required to

maintain over engineering decisions made

personally or by others over which the

engineer exercises supervisory direction and

control authority. The engineer in

responsible charge is the Engineer of Record

as defined in subsection 61G15 - 30.002(1),

F.A.C.

(a) The degree of control necessary for the

Engineer of Record shall be such that the

engineer:

1. Personally makes engineering decisions

or reviews and appro ves proposed decisions

prior to their implementation, including the

consideration of alternatives, whenever

engineering decisions which could affect the

health, safety and welfare of the public are

made. In making said engineering decisions,

the engineer shall be physically present or,

if not physically present, be available in a

reasonable period of time, through the use

of electronic communication devices, such as

electronic mail, videoconferencing,

teleconferencing, computer networking, or

via facsimile transmission.

2. Judges the validity and applicability of

recommendations prior to their incorporation

into the work, including the qualifications

of those making the recommendations.

(b) Engineering decisions which must be

made by and are the respons ibility of the

Engineer of Record are those decisions

concerning permanent or temporary work which

could create a danger to the health, safety,

and welfare of the public, such as, but not

limited to, the following:

1. The selection of engineering

alterna tives to be investigated and the

comparison of alternatives for engineering

works.

2. The selection or development of design

standards or methods, and materials to be

used.

3. The selection or development of

techniques or methods of testing to be used

in evaluating materials or completed works,

either new or existing.

4. The development and control of operating

and maintenance procedures.

(c) As a test to evaluate whether an

engineer is the Engineer of Record, the

following shall be considered:

1. The engineer shall be capable of

answering questions relevant to the

engineering decisions made during the

engineer's work on the project, in

sufficient detail as to leave little doubt

as to the engineer's proficiency for the

work performed and involvemen t in said work.

It is not necessary to defend decisions as

in an adversary situation, but only to

demonstrate that the engineer in responsible

charge made them and possessed sufficient

knowledge of the project to make them.

Examples of questions to be an swered by the

engineer could relate to criteria for

design, applicable codes and standards,

methods of analysis, selection of materials

and systems, economics of alternate

solutions, and environmental considerations.

The individuals should be able to clea rly

define the span and degree of control and

how it was exercised and to demonstrate that

the engineer was answerable within said span

and degree of control necessary for the

engineering work done.

2. The engineer shall be completely in

charge of, and s atisfied with, the

engineering aspects of the project.

3. The engineer shall have the ability to

review design work at any time during the

development of the project and shall be

available to exercise judgment in reviewing

these documents.

4. The engin eer shall have personal

knowledge of the technical abilities of the

technical personnel doing the work and be

satisfied that these capabilities are

sufficient for the performance of the work.

(d) The term "responsible charge" relates

to engineering decis ions within the purview

of the Professional Engineers Act and does

not refer to management control in a

hierarchy of professional engineers except

as each of the individuals in the hierarchy

exercises independent engineering judg[]ment

and thus responsible charge. It does not

refer to administrative and personnel

management functions. While an engineer may

also have such duties in this position, it

should not enhance or decrease one's status

of being in responsible charge of the work.

The phrase does not refer to the concept of

financial liability.

47. "Engineer of Record" is defined in Florida

Administrative Code Rule 61G15 - 30.002(1), as follows:

Engineer of Record. A Florida professional

engineer who is in responsible charge for

the preparation, sign ing, dating, sealing

and issuing of any engineering document(s)

for any engineering service or creative

work.

48. "Engineering documents," as that term is used in

Florida Administrative Code Rule 61G15 - 30.002(1), is defined in

Florida Administrative Code Rule 61G15 - 30.002(4) as follows:

Engineering Documents. Engineering

documents are designs, plans,

specifications, drawings, prints, reports,

or similar instruments of service in

connection with engineering services or

creative work that have been prepare d and

issued by the professional engineer or under

his responsible supervision, direction or

control.

49. The "sealing" of "engineering documents" is addressed

in Section 471.025, Florida Statutes, which provides as follows:

(1) The [B]oard [of Professi onal Engineers]

shall prescribe, by rule, one or more forms

of seal to be used by licensees. Each

licensee shall obtain at least one seal in

the form approved by rule of the board and

may, in addition, register his or her seal

electronically in accordance with ss.

668.001 - 668.006. All final drawings,

specifications, plans, reports, or documents

prepared or issued by the licensee and being

filed for public record and all final

documents provided to the owner or the

owner's representative shall be signed by

the licensee, dated, and sealed with said

seal. Such signature, date, and seal shall

be evidence of the authenticity of that to

which they are affixed. Drawings,

specifications, plans, reports, final

documents, or documents prepared or issued

by a licen see may be transmitted

electronically and may be signed by the

licensee, dated, and sealed electronically

with said seal in accordance with ss.

668.001 - 668.006.

(2) It is unlawful for any person to seal

or digitally sign any document with a seal

or digi tal signature after his or her

license has expired or been revoked or

suspended, unless such license has been

reinstated or reissued. When an engineer's

license has been revoked or suspended by the

board, the licensee shall, within a period

of 30 days aft er the revocation or

suspension has become effective, surrender

his or her seal to the executive director of

the board and confirm to the executive

director the cancellation of the licensee's

digital signature in accordance with ss.

668.001 - 668.006. In th e event the

engineer's license has been suspended for a

period of time, his or her seal shall be

returned to him or her upon expiration of

the suspension period.

(3) No licensee shall affix or permit to be

affixed his or her seal, name, or digital

signa ture to any plan, specification,

drawing, final bid document, or other

document that depicts work which he or she

is not licensed to perform or which is

beyond his or her profession or specialty

therein.

See also Fla. Admin. Code R. 61G15 - 23.002 ("(1) A professional

engineer shall sign his name and affix his seal to all plans,

specifications, reports, final bid documents provided to the

owner or the owner's representative, or other documents prepared

or issued by said registrant and being filed for public record.

The date that the signature and seal is affixed as provided

herein shall be entered on said plans, specifications, reports,

or other documents immediately under the signature of the

professional engineer. (2) Each sheet of plans and prints which

must be sealed under the provisions of Chapter 471, F.S., shall

be sealed, signed and dated by the professional engineer in

responsible charge. Engineers shall legibly indicate their

name, address, and license number on each sheet. If practicing

through a duly authorized engineering business, engineers shall

legibly indicate their name and license number, as well as, the

name, address, and certificate of authorization number of the

engineering business on each sheet. . . ."); and Fla. Admin.

Code R. 61G1 5 - 29.001(3) (" Engineers who sign and/or seal

certifications which: (a) relate to matters which are beyond

the engineer's technical competence, or (b) involve matters

which are beyond the engineer's scope of services actually

provided, or (c) relate to mat ters which were not prepared under

engineer's responsible supervision, direction, or control; would

be subject to discipline pursuant to Rule 61G15 - 19.001(6).").

50. "Engineering documents" that have been "sealed" by one

licensed engineer may be "reuse[d] " by another licensed

engineer, but only if the "procedures" set forth in Florida

Administrative Code Rule 61G15 - 27.001, which provides as

follows, are followed:

(1) A successor professional engineer

seeking to reuse already sealed contract

documents unde r the successor professional

engineer's seal must be able to document and

produce upon request evidence that he has in

fact recreated all the work done by the

original professional engineer. In other

words, calculations, site visits, research

and the like must be documented and

produceable upon demand. Further, the

successor professional engineer must take

all professional and legal responsibility

for the documents which he sealed and signed

and can in no way exempt himself from such

full responsibility. Plans need not be

redrawn by the successor professional

engineer; however, justification for such

action must be available through well kept

and complete documentation on the part of

the successor professional engineer as to

his having rethought and rewor ked the entire

design process. A successor professional

engineer must use his own title block, seal

and signature and must remove the title

block, seal and signature of the original

professional engineer before reusing any

sealed contract documents.

(2) Prior to sealing and signing work a

successor professional engineer shall be

required to notify the original professional

engineer, his successors, or assigns by

certified letter to the last known address

of the original professional engineer of the

succe ssor's intention to use or reuse the

original professional engineer's work. The

successor professional engineer will take

full responsibility for the drawing as

though they were the successor professional

engineer's original product.

51. It is the respo nsibility of the Board to enforce the

provisions of Chapter 471, Florida Statutes.

52. Petitioner was "created to provide administrative,

investigative, and prosecutorial services to the

[B]oard . . . ." § 471.038 (3), Fla. Stat.

53. The Board is empo wered to take disciplinary action

against Florida - licensed professional engineers based upon any

of the grounds enumerated in Section 471.033(1), Florida

Statutes.

54. Such disciplinary action may include one or more of

the following penalties: license revocation; license

suspension; imposition of an administrative fine not to exceed

$5,000.00 for each count or separate offense; issuance of a

reprimand; placement of the licensee on probation; restriction

of the authorized scope of the licensee's practic e; and

requiring the licensee to pay restitution. § 471.033(3), Fla.

Stat.

55. The Board may take such action against only after the

licensee has been given reasonable written notice of the charges

and an adequate opportunity to request a proceeding pur suant to

Sections 120.569 and 120.57, Florida Statutes. § 120.65(5),

Fla. Stat.

56. An evidentiary hearing must be held if requested by

the licensee when there are disputed issues of material fact.

§§ 120.569(1) and 120.57(1), Fla. Stat.

57. At the he aring, Petitioner (prosecuting on behalf of

the Board) bears the burden of proving that the licensee engaged

in the conduct, and thereby committed the violations, alleged in

the charging instrument.

58. Proof greater than a mere preponderance of the

evi dence must be presented by Petitioner to meet its burden of

proof. Clear and convincing evidence of the licensee's guilt is

required. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292, 294 (Fla. 1987); Pou v. Department of Insurance and

Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998); and §

120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon

a preponderance of th e evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute . . . .").

59. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusi on of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

Id. For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses test ify 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 c onviction, 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,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983). "Although this standard o f proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

60. In determining whether Petitioner ha s met its burden

of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific allegations of wrongdoing

made in the charging instrument. Due process prohibits the

Board from taking penal action against a licensee based on

ma tters not specifically alleged in the charging instrument,

unless those matters have been tried by consent. See Shore

Village Property Owners' Association, Inc. v. Department of

Environmental Protection , 824 So. 2d 208, 210 (Fla. 4th DCA

2002); Hamilton v . Department of Business and Professional

Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v.

Agency for Health Care Administration , 731 So. 2d 67, 69 (Fla.

4th DCA 1999); Cottrill v. Department of Insurance , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996 ); and Delk v. Department of

Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA

1992).

61. In those cases where the proof is sufficient to

establish that the licensee committed the violation(s) alleged

in the charging instrument and that therefo re disciplinary

action is warranted, it is necessary, in determining what

disciplinary action should be taken against the licensee, to

consult the Board's "disciplinary guidelines," as they existed

at the time of the violation(s). See Parrot Heads, Inc. v .

Department of Business and Professional Regulation , 741 So. 2d

1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is

bound by its own rules . . . creat[ing] guidelines for

disciplinary penalties."); and Orasan v. Agency for Health Care

Administrati on, Board of Medicine , 668 So. 2d 1062, 1063 (Fla.

1st DCA 1996)("[T]he case was properly decided under the

disciplinary guidelines in effect at the time of the alleged

violations."); see also State v. Jenkins , 469 So. 2d 733, 734

(Fla. 1985)("[A]gency rul es and regulations, duly promulgated

under the authority of law, have the effect of law."); Buffa v.

Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA 1995)("An agency

must comply with its own rules."); and Williams v. Department of

Transportation , 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency

is required to comply with its disciplinary guidelines in taking

disciplinary action against its employees).

62. At all times material to the instant case, the

Commission's "disciplinary guidelines" have been set forth in

Florida Administrative Code Rule 61G15 - 19.004 , and have

provided, in pertinent part, as follows:

(1) The Board sets forth below a range of

disciplinary guidelines from which

disciplinary penalties will be imposed upon

practitioners (including holders of

certificate of authorization) guilty of

violating Chapter 471, F.S. The purpose of

the disciplinary guidelines is to give

notice to licensees of the range of

penalties which will normally be imposed

upon violations of particular provisions of

Chapter 4 71, F.S. The disciplinary

guidelines are based upon a single count

violation of each provision listed.

Multiple counts of violations of the same

provision of Chapter 471, F.S., or the rules

promulgated thereto, or other unrelated

violations contained in the same

administrative complaint will be grounds for

enhancement of penalties. All penalties at

the upper range of the sanctions set forth

in the guidelines, i.e., suspension,

revocation, etc., include lesser penalties,

i.e., fine, probation or reprimand which may

be included in the final penalty at the

Board's discretion. All impositions of

probation as a penalty shall include

successful completion of the Engineering Law

and Rules Study Guide, completion of a

Board - approved course in Engineering

Profess ionalism and Ethics, and an

appearance before the Board at the option of

the Board at the end of the probationary

period. Other terms may be imposed by the

Board at its discretion.

(2) The following disciplinary guidelines

shall be followed by the Board in imposing

disciplinary penalties upon licensees for

violation of the below mentioned statutes

and rules:

* * *

(c) Violation: "Plan stamping”

(471.033(1)(j), F.S.)

(paragraphs 61G15 - 19.001(6)(j), (q))[ 3 ]

Minimum: Repri mand, one (1) year probation

and $1,000 fine

Maximum: Reprimand, $5,000 fine, one (1)

year suspension, and two (2) year probation.

* * *

(s) Violation: Violation of any provision

of Chapter 61G - 15, F.A.C. or Chapter 471,

F.S. (455.227, F.S.)(471.033(1)(a), F.S.)

Minimum: Reprimand, $1,000 fine

Maximum: One (1) year suspension, two (2)

year probation, and $5,000 fine.

(3) The board shall be entitled to deviate

from the above - mentioned guidelines upon a

showing of aggravati ng or mitigating

circumstances by clear and convincing

evidence presented to the board prior to the

imposition of a final penalty. The fact

that a Hearing Officer [sic] of the Division

of Administrative Hearings may or may not

have been aware of the below mentioned

aggravating or mitigating circumstances

prior to a recommendation of penalty in a

Recommended Order shall not obviate the duty

of the board to consider aggravating and

mitigating circumstances brought to its

attention prior to the issuance of a Final

Order.

(a) Aggravating circumstances;

circumstances which may justify deviating

from the above set forth disciplinary

guidelines and cause the enhancement of a

penalty beyond the maximum level of

discipline in the guidelines shall include

but not b e limited to the following:

1. History of previous violations of the

practice act and the rules promulgated

thereto.

2. In the case of negligence; of the

magnitude and scope of the project and the

damage inflicted upon the general public by

the license e's misfeasance.

3. Evidence of violation of professional

practice acts in other jurisdictions wherein

the licensee has been disciplined by the

appropriate regulatory authority.

4. Violation of the provision of the

practice act wherein a letter of guid ance as

provided in Section 455.225(3), F.S., has

previously been issued to the licensee.

(b) Mitigating circumstances; circumstances

which may justify deviating from the above

set forth disciplinary guidelines and cause

the lessening of a penalty beyond the

minimum level of discipline in the

guidelines shall include but not be limited

to the following:

1. In cases of negligence, the minor nature

of the project in question and lack of

danger to the public health, safety and

welfare resulting from the li censee's

misfeasance.

2. Lack of previous disciplinary history in

this or any other jurisdiction wherein the

licensee practices his profession.

3. Restitution of any damages suffered by

the licensee's client.

4. The licensee's professional standing

a mong his peers including continuing

education.

5. Steps taken by the licensee or his firm

to insure the non - occurrence of similar

violations in the future.

63. The charging instrument in the instant case, the

Administrative Complaint issued September 3 0, 2004, alleges that

Respondent twice violated Section 433.033(1)(j), Florida

Statutes, by "affixing or permitting to be affixed his seal,

name, or signature to final drawings that were not prepared by

him or under his responsible supervision, direction, or control"

(once in connection with the TE Project and again in connection

with the MV Project) and that the also twice violated Section

477.033(1)(a), Florida Statutes, "by aiding and assisting an

unlicensed person [Mr. Naranjo] to practice engineering,"

contrary to Section 455.227(1)(j), Florida Statutes (once in

connection with the TE Project and again in connection with the

MV Project).

64. At all times material to the instant case, Section

471.033(1)(j), Florida Statutes, has provided as follows:

The following acts constitute grounds for

which the disciplinary actions in subsection

(3) may be taken:

* * *

Affixing or permitting to be affixed his or

her seal, name, or digital signature to any

final drawings, specifications, plans,

reports, or documents that were not prepared

by him or her or under his or her

responsible supervision, direction, or

control.

65. At all times material to the instant case, Section

471.033(1)(a), Florida Statutes, has provided as follows:

The fo llowing acts constitute grounds for

which the disciplinary actions in subsection

(3) may be taken:

* * *

Violating any provision of s. 455.227(1), s.

471.025, or s. 471.031, or any other

provision of this chapter or rule of the

board or department.

66. At all times material to the instant case, Section

455.227(1)(j), Florida Statutes, has provided as follows:

The following acts shall constitute grounds

for which the disciplinary actions specified

in subsection (2) may be taken :

* * *

Aiding, assisting, procuring, employing, or

advising any unlicensed person or entity to

practice a profession contrary to this

chapter, the chapter regulating the

profession, or the rules of the department

or the board.

67. Petitioner failed to meet its burden of proving that

Respondent committed the violations alleged in the

Administrative Complaint.

68. Although he was not required to do so to prevail in

this matter, Respondent affirmatively established, through his

own credible testimony, which was corroborated by the testimony

of other witnesses, that the plans he signed and sealed for the

TE Project and the MV Project were prepared under his

responsible supervision, direction, and control and, further,

that he was in "responsible charge" of the work done by

Mr. Naranjo and Mr. Naranjo's employees, Mr. Viteri and

Ms. Rodriguez, in connection with these projects and he did not

do anything intended to aid or assist in the unlicensed practice

of engineering.

69. Such being the case, the Administrative Complaint

against Respondent should be dismissed in its entirety.

70. In his Answer to the Administrative Complaint,

Respondent requested that, in addition to the dismissal of the

Administrative Complaint, he be granted "all other relief,

including attorney's fees and costs for this defense pursuant to

§ 120.569[(2)](e) 4 and any other applicable statute or code

section, deemed just an[d] proper." In his Proposed Recommended

Order, however, he did not argue that he was e ntitled to any

relief other than the issuance of "a final order in this case

dismissing all charges against [him]." In any event, the record

before the undersigned does not establish Respondent's

entitlement to any such additional relief.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Board issue a final order dismissing

all four counts of the Administrative Complaint issued against

Respondent.

DONE AND ENTERED this 5th day of April, 200 5, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of April, 2005.

ENDNOTES

1 The hearing was originally scheduled to commence on

January 10, 2005, but was con tinued at the Respondent's request.

2 These factual stipulations have been accepted. See Columbia

Bank for Cooperatives v. Okeelanta Sugar Cooperative , 52 So. 2d

670, 673 (Fla. 1951) (" When a case is tried upon stipulated facts

the stipulation is conclus ive upon both the trial and appellate

courts in respect to matters which may validly be made the

subject of stipulation. Indeed, on appeal neither party will be

heard to suggest that the facts were other than as stipulated or

that any material facts w[ere ] omitted "); Schrimsher v. School

Board of Palm Beach County , 694 So. 2d 856, 863 (Fla. 4th DCA

1997) (" The hearing officer is bound by the parties'

stipulations."); and Palm Beach Community College v. State,

Department of Administration, Division of Retire ment , 579 So. 2d

300, 302 (Fla. 4th DCA 1991)("When the parties agree that a case

is to be tried upon stipulated facts, the stipulation is binding

not only upon the parties but also upon the trial and reviewing

courts. In addition, no other or different f acts will be

presumed to exist.").

3 "[P]aragraphs 61G15 - 19.001(6)(j) and (q)" of the Florida

Administrative Code provide as follows:

A professional engineer shall not commit

misconduct in the practice of engineering.

Misconduct in the practice of engi neering as

set forth in Section 471.033(1)(g), F.S.,

shall include, but not be limited to:

* * *

(j) Affixing his seal and/or signature to

plans, specifications, drawings, or other

documents required to be sealed pursuant to

Se ction 471.025(1), F.S., when such document

has not been personally prepared by the

engineer or prepared under his responsible

supervision, direction and control;

* * *

(q) Sealing and signing all documents for

an entire enginee ring project, unless each

design segment is signed and sealed by the

professional engineer in responsible charge

of the preparation of that design segment;

* * *

4 Section 120.569(2)(e), Florida Statutes, provides as follows:

All pleadings, motions, or other papers

filed in the proceeding must be signed by

the party, the party's attorney, or the

party's qualified representative. The

signature constitutes a certificate that the

person has read the pleading, motion, or

other pape r and that, based upon reasonable

inquiry, it is not interposed for any

improper purposes, such as to harass or to

cause unnecessary delay, or for frivolous

purpose or needless increase in the cost of

litigation. If a pleading, motion, or other

paper is s igned in violation of these

requirements, the presiding officer shall

impose upon the person who signed it, the

represented party, or both, an appropriate

sanction, which may include an order to pay

the other party or parties the amount of

reasonable expen ses incurred because of the

filing of the pleading, motion, or other

paper, including a reasonable attorney's

fee.

COPIES FURNISHED :

Bruce A. Campbell, Esquire

Fl orida Engineers Management Corporation

2507 Calloway Road, Suite 200

Tallahassee, Florida 32303 - 5267

Samuel B. Reiner, II, Esquire

9100 South Dadeland Boulevard, Suite 1408

Miami, Florida 33156 - 7816

Natalie A. Lowe, Executive Director

Florida Board of Professional Engineers

2507 Calloway Road, Suite 200

Tallahassee, Florida 32303 - 5267

Doug Sunshine, V.P. for Legal Affairs

Florida Engineers Management Corporation

2507 Calloway Road

Tallahassee, Florida 32303 - 5267

Leon Biegalski, General Counsel

D epartment of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

N OTICE OF RIGHT TO SU BMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of thi s Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.