05-000382 Florida Engineers Management Corporation vs. The Pool People, Inc. Status: Closed Recommended Order on Wednesday, November 29, 2006.

Summary: Petitioner failed to prove that Respondent, who hired a licensed engineer to provide signed and sealed engineering plans for a pool Respondent had contracted to build, engaged in the unlicensed practice of engineering.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0382

)

THE POOL PEOPLE, INC., )

)

Respondent. )

)

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 06 - 1581PL

)

MING ZEN HUANG, P.E., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted pursuant to

Sections 120.569 and 120.57(1), Florida Statutes, 1 in these

consolidated cases on October 5, 2006, in Tallahassee, Florida,

before Stuart M. Lerner, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Bruce A. Campbell, Esquire

Florida Engineers Management Corporation

2507 Calloway Road, Suite 200

Tallahassee, Florida 32303 - 5267

For Respondents: William R. Clayton, Esquire

David O. Batis ta, Esquire

Greenberg Traurig, P. A.

East Las Olas Boulevard, Suite 2000

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether Respondents committed the violations alleged in the

Administrative Complaints filed against them and, if so, what

penalties, if any, should be imposed.

PRELIMINARY STATEMENT

DOAH Case No. 05 - 0382

On December 20, 2004, Petitioner filed an Administrative

Complaint charging The Pool People, Inc., with five c ounts of

"violat[ing] Section 471.031(1)(a), Florida Statutes, by

practicing engineering without a license." In Count One,

Petitioner alleged that, "[o]n or about June 10, 2004, [The Pool

People], through its qualifying individual contractor, filed an

app lication for a permit to build a pool for an owner, Vista

Builders, at 16326 78th Road North, in Palm Beach County,

Florida" (hereinafter referred to as the "Vista Builders

Project") and that the "application included 4 pages of

engineering plans signed an d sealed on June 9, 2004, by Ming Z.

Huang, P. E.," whom the Pool People had "employed . . . to

provide engineering services included in its contract with Vista

Builders." In Count Two, Petitioner alleged that, "[o]n or

about July 7, 2004, [The Pool Peopl e], through its qualifying

individual contractor, filed an application for a permit to

build a pool for an owner, Toll Brothers, at 8108 Laurel Ridge

Court, in Palm Beach County, Florida" (hereinafter referred to

as the "Toll Brothers Project") and that th e "application

included 4 pages of engineering plans signed and sealed on

June 23, 2004, by Ming Z. Huang, P. E.," whom The Pool People

had "employed . . . to provide engineering services included in

its contract with Toll Brothers." In Count Three, Petit ioner

alleged that, "[o]n or about July 22, 2004, [The Pool People],

through its qualifying individual contractor, filed an

application for a permit to build a pool for an owner, Jandjel,

at 10265 Brookville Lane, Boca Raton, in Palm Beach County,

Florida" (hereinafter referred to as the "Jandjel Project") and

that the "application included 4 pages of engineering plans

signed and sealed on July 20, 2004, by Ming Z. Huang, P. E.,"

whom the Pool People had "employed . . . to provide engineering

services inclu ded in its contract with Jandjel." In Count Four,

Petitioner alleged that, "[o]n or about July 26, 2004, [The Pool

People], through its qualifying individual contractor, filed an

application for a permit to build a pool for an owner, Shelby

Homes, at 1068 1 Oak Meadow Lane, in Palm Beach County, Florida"

(hereinafter referred to as the "Shelby Homes Project") and that

the "application included 4 pages of engineering plans signed

and sealed on July 22, 2004, by Ming Z. Huang, P. E.," whom the

Pool People had "employed . . . to provide engineering services

included in its contract with Shelby Homes." In Count Five,

Petitioner alleged that, "[o]n or about June 24, 2004, [The Pool

People], through its qualifying individual contractor, filed an

application for a permit to build a pool for an owner, Anthony

Rycko, at 13761 76th Road North, in Palm Beach County, Florida"

(hereinafter referred to as the "Rycko Project") and that the

"application included 4 pages of engineering plans signed and

sealed on June 23, 200 4, by Ming Z. Huang, P. E.," whom the Pool

People had "employed . . . to provide engineering services

included in its contract with Anthony Rycko." With respect to

all five counts, Petitioner alleged that:

Respondent engaged in the practice of

engineering in one or more of the following

ways:

a. by filing engineering plans signed and

sealed by a professional engineer employed

by Respondent while Respondent did not have

a Certificate of Authorization as required

by Section 471.023, Florida Statutes;

b. by providing engineering services

directly to a customer while Respondent does

not have a Certificate of Authorization as

required by Section 471.023, Florida

Statutes.

Pursuant to The Pool People's written request, the matter

was referred to DOAH for the assignment of an administrative law

judge to conduct a hearing pursuant to Section 120.57(1),

Florida Statutes. The case was docketed as DOAH Case No.

05 - 0382.

On February 25, 2005, The Pool People served its First

Request for Admissions to Petitioner. In its response, served

on The Pool People on March 2, 2005, Petitioner admitted the

following:

1. The Board has no evidence that Ming Z.

Huang, P.E. is an employee of Respondent.

2. The Board has not previously defined

(through any final order, rule, statute or

any other policy statement) the practice of

professional engineering to include

circumstances where a licensed contractor

files a building permit application that

includes engineering drawings signed and

sealed by a licensed engineer who is not an

employee of the contractor.

* * *

5. A licensed professional engineer may

provide engineering services to a licensed

contractor pursuant to a contract.

6. [W]ithout other facts, the fact that a

contractor includes enginee ring drawings in

a building permit application filed by the

contractor, does not constitute the practice

of engineering when the engineer is not the

employee of the contractor.

7. Prior to filing the Administrative

Complaint in this cause, no investigato r,

agent, or other representative of the Board

of Professional Engineers interviewed Ming

Z. Huang, P.E., regarding his business

relationship or other activities with The

Pool People, Inc.

8. Prior to filing the Administrative

Complaint in this cause, no investigator,

agent, or other representative of the Board

of Professional Engineers interviewed Ming

Z. Huang, P.E., regarding the engineering

plans referred to in the Administrative

Complaint.

9. Prior to filing the Administrative

Complaint in this cau se, no investigator,

agent, or other representative of the Board

of Professional Engineers interviewed any of

the principals of The Pool People, Inc.,

regarding the respondent’s relationship with

Ming Z. Huang, P.E.

10. Prior to filing the Administrative

Complaint in this cause, no investigator,

agent, or other representative of the Board

of Professional Engineers interviewed any of

the principals of The Pool People, Inc.,

regarding the allegations in the

administrative complaint.

11. Prior to filing th e Administrative

Complaint in this cause, no investigator,

agent, or other representative of the Board

of Professional Engineers interviewed any of

the principals of The Pool People, Inc.,

regarding the issues raised in the

administrative Complaint.

12. Prior to filing the Administrative

Complaint in this cause, no investigator,

agent, or other representative of the Board

of Professional Engineers interviewed any

employee, agent, or other representative of

The Pool People, Inc., regarding the

allegations in the Administrative Complaint.

13. Prior to filing the Administrative

Complaint in this cause, no investigator,

agent, or other representative of the Board

of Professional Engineers interviewed any

employee or other representative of The Pool

People, I nc., regarding the issues raised in

the Administrative Complaint.

The final hearing in DOAH Case No. 05 - 0382 was originally

scheduled for April 7 and 8, 2005. At The Pool People's

request, the hearing was continued and rescheduled for May 23

and 24, 2005. On May 12, 2005, The Pool People filed a second

motion for continuance, requesting that the final hearing not be

held until after the issuance of the final order in DOAH Case

No. 05 - 1673RU, a case in which, according to its motion, it had

alleged that "t he underlying bases for the action initiated by

[P]etitioner in [DOAH Case No. 05 - 0382] are unpromulgated

rules." By order issued May 16, 2005, the motion was granted.

On December 14, 2005, the previously - assigned

administrative law judge, Judge Michael M . Parrish, issued an

Order Requiring Status Report, in which he observed:

This case has been in an inactive status

pending the disposition of a related rule

challenge case. A final order has been

issued in the related rule challenge case.

Accordingly, it would appear that this case

should now be rescheduled for final hearing

unless the parties have agreed to some other

disposition of the case.

In the Status Report that it filed in response to this order,

The Pool People advised that it had appealed the F inal Order in

DOAH Case No. 05 - 1637RU, and it requested that DOAH Case No.

05 - 0382 be held in abeyance pending the outcome of this appeal.

By Order Placing Case in Abeyance issued January 30, 2006, the

request was granted.

On May 4, 2006, having been inf ormed that the appeal of the

Final Order in DOAH Case No. 05 - 1637RU had been "disposed of,"

Judge Parrish "restored [DOAH Case No. 05 - 0382] to active

status."

DOAH Case No. 06 - 1581PL

On February 22, 2006, Petitioner filed a two - count

Administrative Compla int against Ming Zen Huang, P.E. In Count

One, Petitioner alleged that Mr. Huang "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 u nder his responsible supervision,

direction, or control," to wit: the engineering plans

referenced in Count Four of the Administrative Complaint filed

in DOAH Case No. 05 - 0382. According to the Administrative

Complaint filed against Mr. Huang, these plan s "had been drawn

by The Pool People," and they had been "signed and sealed [by

Mr. Huang] pursuant to his employment by The Pool People." In

Count Two, Petitioner alleged that Mr. Huang "violated Section

471.033[(]1[)](a), Florida Statutes, by violating Section

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

unlicensed entity, The Pool People, Inc., to practice

engineering" in connection with the project referenced in Count

Four of the Administrative Complaint filed in DOAH Case No. 05 -

0382.

P ursuant to Mr. Huang's written request, the matter was

referred to DOAH for the assignment of an administrative law

judge to conduct a hearing pursuant to Section 120.57(1),

Florida Statutes. The case was docketed as DOAH Case No.

06 - 1518PL.

Consolidatio n of DOAH Case Nos. 05 - 0382 and 06 - 1518PL

In their Response to the Initial Order in DOAH Case No.

06 - 1518PL, the parties requested that the case be consolidated

with DOAH Case No. 05 - 0382. On May 22, 2006, the undersigned

issued an order granting the req uest and scheduling the final

hearing in the consolidated cases for June 26, 2006.

Post - Consolidation Activity

The final hearing was twice continued at Respondents'

request. It was ultimately scheduled to commence on October 5,

2006.

On October 4, 2006, t he parties filed a Joint Stipulation

of Facts, in which the parties stipulated to the following:

1. The Board of Professional Engineers is

charged with deterring the unlicensed

practice of engineering pursuant to Section

471.038(5) and Chapter 455, Florid a

Statutes.

2. In June and July 2004, Respondent, The

Pool People ("Pool People"), was a Florida

corporation with a principal office at 2150

SW 10th Street, Deerfield Beach, Florida

33442. During this time period, Pool People

was qualified to construct swimming pools

under Chapter 489, Florida Statutes, through

its qualifying agent Daniel M. Lowe, a

Florida licensed swimming pool contractor.

In June and July 2004, Pool People held

certificate number QB 0002429 issued by the

Construction Industry Licens ing Board and in

June and July 2004, Mr. Lowe held license

number CPC 039909, issued by the same board.

3. Between June 9, 2004 through July 22,

2004, Ming Zen Huang, P.E., was a licensed

professional engineer with Florida license

number PE 53856. Durin g this time period,

Mr. Huang was employed full - time as a

professor at Florida Atlantic University,

Boca Raton, Florida.

4. On or about June 10, 2004, Daniel M.

Lowe, as qualifier for The Pool People,

Inc., filed an application for a permit to

build a po ol for an owner, Vista Builders,

at 16326 78th Road North, in Palm Beach

County, Florida.

5. On or about July 7, 2004, Daniel M.

Lowe, as qualifier for The Pool People,

Inc., filed an application for a permit to

build a pool for an owner, Toll Brothers,

[at] 8108 Laurel Ridge Court, in Palm Beach

County, Florida.

6. On or about July 22, 2004, Daniel M.

Lowe, as qualifier for The Pool People,

Inc., filed an application for a permit to

build a pool for an owner identified as

Jandjel [at] 10265 Brookville Lane, in Palm

Beach County, Florida.

7. On or about June 24, 2004, Daniel M.

Lowe, as qualifier for The Pool People,

Inc., filed an application for an owner

identified as Anthony Rycko on the

application form for 13761 76th Rd N., in

Palm Beach County, F lorida.

8. Respondent, The Pool People, Inc., has

never been the subject of any administrative

complaint or disciplinary proceedings,

except this one.

9. The Construction Industry Licensing

Board, which authorizes Pool People to do

business as a swimmi ng pool construction

company has never advised Pool People that

it was operating outside the scope of its

permitted authority.

10. Respondent, Ming Z. Huang, P.E., has

never been the subject of any administrative

complaint or disciplinary proceedings,

ex cept this one.

The final hearing in these consolidated cases was held on

October 5, 2006. A total of 21 exhibits (Petitioner's Exhibits

1 through 7, and Respondents' Exhibits 1 through 3, 8 through

12, 14 through 17, 19, and 20) were offered and received into

evidence. No live testimony was presented. 2

Following the close of the evidence, but before the

conclusion of the hearing, the undersigned established a

deadline (30 days from the date of the filing of the hearing

transcript with DOAH) for the filin g of proposed recommended

orders.

The hearing Transcript (consisting of one volume) was filed

with DOAH on October 18, 2006.

Petitioner and Respondents filed their Proposed Recommended

Orders on November 1, 2006, and November 17, 2006, respectively.

In its Proposed Recommended Order, Petitioner conceded that it

"did not prove by clear and convincing evidence that Ming Z.

Huang, P.E., signed and sealed plans that were not prepared by

him or under his responsible supervision, direction or control,

because, although individual plans may not have been drafted by

him, the only evidence was that he had approved the standard

specifications before the plans were drawn."

FINDINGS OF FACT

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

a whole, the foll owing findings of fact are made to supplement

and clarify the extensive factual stipulations set forth in the

parties' Joint Statement of Facts 3 :

1. Each of the five projects at issue in these

consolidated cases (the Vista Builders Project, the Toll

Broth ers Project, the Jandjel Project, the Shelby Homes Project,

and the Rycko Project, collectively referred to hereinafter as

the "Five Pool Projects" 4 ) involved the construction of a

swimming pool by The Pool People for a customer, a task which,

at all mater ial times, The Pool People was authorized to

undertake through its qualifying agent (Daniel Lowe) by virtue

of its holding the certificate of authority from the Florida

Construction Industry Licensing Board (certificate number QB

0002429) referenced in the parties' Stipulation of Fact 3.

2. The Pool People does not now have, nor has it ever had,

a certificate of authorization (issued by the Florida Engineers

Management Corporation pursuant to Section 471.023, Florida

Statutes) to engage in the practice of engineering in Florida as

a business organization "through licensees under [Chapter 471,

Florida Statutes] as agents, employees, officers, or partners."

3. At all material times, Mr. Huang was a "licensee under

[Chapter 471, Florida Statutes]," that is, an individual

authorized to engage in the practice of engineering in Florida.

4. Mr. Huang signed and sealed the engineering plans that

The Pool People submitted in applying for the building permits

required to complete the Five Pool Projects.

5. The wri tten contracts The Pool People entered into with

its customers for the Vista Builders, Toll Brothers, Shelby

Homes, and Rycko Projects did not expressly mention anything

about engineering services 5 ; however, such services were

performed in connection with each of these projects, as well as

in connection with the Jandjel Project (those services being the

work associated with the aforesaid engineering plans that

accompanied the building permit applications The Pool People

filed).

6. The only record evidenc e as to the arrangement

Mr. Huang had with The Pool People and how he went about

providing his services pursuant to that arrangement was the

testimony given by The Pool People's senior vice president and

chief operating officer, Walter Barrett, at the fina l hearing in

DOAH Case No. 05 - 1637RU. This "former testimony" of

Mr. Barrett, who was not shown to be unavailable to testify

about these matters at the final hearing in the instant cases,

was offered by Petitioner (as Petitioner's Exhibit 6). It

constitu ted hearsay evidence. To the extent that it was offered

against Mr. Huang, 6 this hearsay testimony is insufficient,

standing alone as it does, to support any finding of fact

because it would not be admissible over objection in a civil

action in Florida. 7 See Scott v. Department of Professional

Regulation , 603 So. 2d 519, 520 (Fla. 1st DCA 1992)("The only

evidence which the appellee presented at the hearing was a

hearsay report which would not have been admissible over

objection in a civil action. . . . [T ]his evidence was not

sufficient in itself to support the Board's findings."); Doran

v. Department of Health and Rehabilitative Services , 558 So. 2d

87 (Fla. 1st DCA 1990)("The documents presented before the

hearing officer were hearsay and did not come wi thin any

recognized exception which would have made them admissible in a

civil action. . . . Because the only evidence presented by the

department to show that Doran held assets in excess of the

eligibility requirements for receiving ICP benefits consiste d of

uncorroborated hearsay evidence, we must reverse the hearing

officer's final order."); and § 120.57(1)(c), Fla. Stat.

("Hearsay evidence may be used for the purpose of supplementing

or explaining other evidence, but it shall not be sufficient in

itsel f to support a finding unless it would be admissible over

objection in civil actions."). To the extent that it was

offered against The Pool People, however, this hearsay testimony

is sufficient to support factual findings based exclusively

thereon because it is an "admission," within the meaning of

Section 90.803(18), Florida Statutes, and therefore would be

admissible over objection in a civil action in Florida. The

following are such factual findings (based exclusively on

Mr. Barrett's "former testimony "), which are made only with

respect to DOAH Case No. 05 - 0382:

a. A little more than a year prior to the final hearing in

DOAH Case No. 05 - 1637RU (which was held on July 21, 2005), The

Pool People "retained [Mr. Huang as] an independent contractor"

to pro vide it with engineering services on a continuing (as

opposed to a per project) basis.

b. After being "retained," Mr. Huang worked on various

projects, including the Five Pool Projects, for The Pool People.

c. The Pool People had Mr. Huang come to its office "on a

regular schedule," three times a week, for generally two to four

hours each visit, to review "construction drawings" (typically

consisting of four pages) that had been prepared, in accordance

with standard specifications that Mr. Huang had alr eady

approved, by personnel in its "drafting department" (none of

whom were licensed engineers). Mr. Huang was expected to

conduct his review "using his professional judgment." The final

products of the review process were engineering plans signed and

se aled by Mr. Huang. These plans were submitted to The Pool

People's "permitting department" for "inclu[sion] in [the

appropriate] applications . . . for building permits." They did

not "go to the customer at all."

d. For his services, The Pool People paid Mr. Huang based,

not on the number of hours he actually worked nor on a per

project basis, but on a "[p]rojected hourly rate per week." 8

e. In May 2004, The Pool People received from the Florida

Board of Professional Engineers a Notice to Cease and Desist

from "hiring an engineer to . . . develop . . . plans for

[building] permit[s]" without having a certificate of

authorization from the Florida Engineers Management Corporation.

The Pool People declined to comply with the directive set forth

in the notice because it did not believe, after consulting with

its counsel, that it was acting unlawfully.

CONCLUSIONS OF LAW

7. DOAH has jurisdiction over the subject matter of these

proceedings and of the parties hereto pursuant to Chapter 120,

Florida St atutes.

8. In Florida, the practice of construction contracting,

including contracting involving the construction of residential

swimming pools, is now, and has been at all material times,

regulated by the provisions of Chapter 455 and Chapter 489, Part

I , Florida Statutes.

9. It is the responsibility of the Florida Construction

Industry Licensing Board (CILB) to administer and enforce the

provisions of Chapter 489, Part I, Florida Statutes. § 489.107,

Fla. Stat.

10. A business organization, such as The Pool People, may

engage in the practice of construction contracting as a

residential pool contractor, through a qualifying agent, if it

has a certificate of authority from the CILB to do so.

§ 489.119, Fla. Stat.

11. The practice of engineering in Flor ida is now, and has

been at all material times, regulated by the provisions of

Chapters 455 and 471, Florida Statutes.

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

Florida Statutes, is now, and has been at all material times,

defined in Secti on 471.005(7), Florida Statutes, as follows:

"Engineering" includes the term

"professional engineering" and means any

service 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 consultation, 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 purpose of determining in general if

the work is proceeding in compliance with

drawings and specifications, any of which

embraces such service s or work, either

public or private, in connection with any

utilities, structures, buildings, machines,

equipment, processes, work systems,

projects, and industrial or consumer

products or equipment of a mechanical,

electrical, hydraulic, pneumatic, or the rmal

nature, insofar as they involve safeguarding

life, health, or property; and includes such

other professional services as may be

necessary to the planning, progress, and

completion of any engineering services. A

person who practices any branch of

engi neering; who, by verbal claim, sign,

advertisement, letterhead, or card, or in

any other way, represents himself or herself

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 practi ce engineering within the

meaning and intent of this chapter.

13. It is the responsibility of the Florida Board of

Professional Engineers (BPE) to administer and enforce the

provisions of Chapter 471, Florida Statutes. In discharging

this responsibility , the BPE is assisted by Florida Engineers

Management Corporation (FEMC), which was "created to provide

administrative, investigative, and prosecutorial services to the

[BPE]." § 471.038 (3), Fla. Stat.

14. In DOAH Case No. 05 - 0382, the BPE, through the F EMC,

in its Administrative Complaint, has charged The Pool People

with violating Section 471.031(1)(a), Florida Statutes, in

connection with each of the Five Pool Projects, 9 by "engag[ing]

in the practice of engineering without having a certificate of

auth orization from the FEMC as required by Section 471.023,

Florida Statutes."

15. At all material times, Section 471.031(1)(a), Florida

Statutes, has provided as follows:

A person may not:

Practice engineering unless the person is

licensed or exempt from l icensure under this

chapter.

16. At all material times, Section 471.023(1), Florida

Statutes, has provided as follows:

The practice of, or the offer to practice,

engineering by licensees or offering

engineering services to the public through a

business organization, including a

partnership, corporation, business trust, or

other legal entity or by a business

organization, including a corporation,

partnership, business trust, or other legal

entity offering such services to the public

through licensees unde r this chapter as

agents, employees, officers, or partners is

permitted only if the business organization

possesses a certification issued by the

management corporation pursuant to

qualification by the board, subject to the

provisions of this chapter. One or more of

the principal officers of the business

organization or one or more partners of the

partnership and all personnel of the

business organization who act in its behalf

as engineers in this state shall be licensed

as provided by this chapter. All f inal

drawings, specifications, plans, reports, or

documents involving practices licensed under

this chapter which are prepared or approved

for the use of the business organization or

for public record within the state shall be

dated and shall bear the sign ature and seal

of the licensee who prepared or approved

them. Nothing in this section shall be

construed to mean that a license to practice

engineering shall be held by a business

organization. Nothing herein prohibits

business organizations from joining together

to offer engineering services to the public,

if each business organization otherwise

meets the requirements of this section. No

business organization shall be relieved of

responsibility for the conduct or acts of

its agents, employees, or office rs by reason

of its compliance with this section, nor

shall any individual practicing engineering

be relieved of responsibility for

professional services performed by reason of

his or her employment or relationship with a

business organization.

Pertinent to DOAH Case No. 05 - 0382 is that portion of the

statute that requires a business organization to obtain a

certificate of authorization from the FEMC when it offers

engineering services to the public through licensees "as agents,

employees, officers, or pa rtners."

17. A "certificate of authorization," as that term is used

in Chapter 471, Florida Statutes, is a "license to practice

engineering."

18. In DOAH Case No. 06 - 1581PL, the BPE, through the FEMC,

in its Administrative Complaint, has charged Mr. Hu ang, in Count

One, with "violat[ing] 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 ," these

"final drawings" being the engineering plans that accompanied

the building permit applications The Pool People filed for the

Shelby Homes Project; and, in Count Two, with "violat[ing]

Section 471.033[(]1[)](a), Florida Statutes, by violating

Secti on 455.227(1)(j), Florida Statutes, by aiding and assisting

an unlicensed entity, The Pool People, Inc., to practice

engineering" in connection with the preparation of the "final

drawings" referenced in Count One.

19. At all material times, Section 471.03 3(1)(a) and (j),

Florida Statutes, has provided as follows:

The following acts constitute grounds for

which the disciplinary actions in subsection

(3)[ 10 ] may be taken:

(a) 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.

* * *

(j) Affixing or permitting to be affixed

his or her seal, name, or digital signature

to any final drawings, specifications,

plans, reports, or documents that w ere not

prepared by him or her or under his or her

responsible supervision, direction, or

control.

20. At all material times, Section 455.227(1)(j), Florida

Statutes, has provided as follows:

The following acts shall constitute grounds

for which the disc iplinary 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 d epartment

or the board.

21. At the final hearing held in the instant cases, the

FEMC (prosecuting on behalf of the BPE) bore the burden of

proving that Respondents engaged in the conduct, and thereby

committed the violations, alleged in the Administrativ e

Complaints filed against them.

22. To meet its burden, the FEMC had to present proof

greater than a mere preponderance of the evidence. Clear and

convincing evidence was required. See Department of Banking and

Finance, Division of Securities and Inv estor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996); Diaz

de la Portilla v. Florida Elections Commission , 857 So. 2d 913,

917 (Fla. 3d DCA. 2003); and § 120.57(1)(j), Fla. Stat.

("Findings of fact shall be based upon a prepondera nce of the

evidence, except in penal . . . proceedings . . . ."). Clear

and convincing evidence "requires more proof than a

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

exclusion 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 testify must be distinctly remembered; the testimony

must be pr ecise and explicit and the witnesses must be lacking

in confusion as to the facts in issue. The evidence must be of

such weight that it produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy, as to the truth of

the allega tions 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 of 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).

23. In determining whether the FEMC met its burden of

proof, it is necessary to evaluate its evide ntiary presentation

at the final hearing in light of the specific allegations of

wrongdoing made in the Administrative Complaints. Due process

prohibits the BPE from taking penal action against a charged

party based on matters 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

Profe ssional Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000); and

Delk v. Department of Professional Regulation , 595 So. 2d 966,

967 (Fla. 5th DCA 1992).

24. The specific allegations of wrongdoing contained in

the Administrative Complaint filed in DOAH Case N o. 05 - 0382 are

that The Pool People, in connection with each of the Five Pool

Projects, practiced engineering without a certificate of

authorization from the FEMC in violation of Section

471.031(1)(a), Florida Statutes, by engaging "in one or more" of

the following activities:

a. by filing engineering plans signed and

sealed by a professional engineer

[Mr. Huang] employed by Respondent while

[it] did not have a Certificate of

Authorization as required by Section

471.023, Florida Statutes [hereinafter

refer red to as "Allegation a."];

b. by providing engineering services

directly to a customer while [it did] not

have a Certificate of Authorization as

required by Section 471.023, Florida

Statutes [hereinafter referred to as

"Allegation b."].

25. It is asse rted in Allegation a. that The Pool People

was required by Section 471.023, Florida Statutes, to possess a

certificate of authorization from the FEMC because it engaged in

the practice of engineering through a licensed engineer,

Mr. Huang, who was acting a s The Pool People's employee when he

signed and sealed the engineering plans that were subsequently

filed by the Pool People in connection with each of the Five

Pool Projects. The FEMC, however, failed to present clear and

convincing evidence at the final hearing establishing that there

existed an employee - employer relationship between Mr. Huang and

The Pool People. Indeed, the record affirmatively establishes

that Mr. Huang was not an employee of The Pool People, but

rather acted as an independent contra ctor, free to exercise his

professional judgment in a manner that was not subject to the

control of The Pool People. See Harper v. Toler , 884 So. 2d

1124, 1131 (Fla. 2d DCA 2004)("The 'extent of control' . . . has

been recognized as the 'most important fa ctor in determining

whether a person is an independent contractor or an employee.'

Of course, employees and independent contractors both are

subject to some control by the person or entity hiring them.

The extent of control exercised over the details of the work

turns on whether the control is focused on simply the 'result to

be obtained' or extends to the 'means to be employed.' A

control directed toward means is necessarily more extensive than

a control directed toward results. Thus, the mere control of

results points to an independent contractor relationship; the

control of means points to an employment relationship.")

(citations omitted). A corporation, such as The Pool People,

that retains FEMC - licensed engineers to provide engineering

services on an independent contractor basis is not obligated to

obtain a certificate of authorization from the FEMC inasmuch as

Section 471.023's certificate of authorization requirement is

triggered only where the licensees are acting as "agents,[ 11 ]

employees, [or] o fficers" of the corporation. To construe

Section 471.023 otherwise would add words to the statute not

placed there by the Legislature. This neither the undersigned

nor the BPE may do. See Hayes v. State , 750 So. 2d 1, 4 ( Fla.

1999)(" We are not at libert y to add words to statutes that were

not placed there by the Legislature.") ; PW Ventures, Inc. v.

Nichols , 533 So. 2d 281, 283 (Fla. 1988)("The express mention of

one thing implies the exclusion of another."); Cook v. State ,

381 So. 2d 1368, 1369 (Fla. 198 0)("According to a longstanding

principle of statutory construction, this list should be

presumed to be exclusive and any omissions to be deliberate.");

Thayer v. State , 335 So. 2d 815, 817 (Fla. 1976)("[W]here a

statute enumerates the things on which it i s to operate, or

forbids certain things, it is ordinarily to be construed as

excluding from its operation all those not expressly

mentioned."); Chaffee v. Miami Transfer Company , Inc. , 288 So.

2d 209, 215 (Fla. 1974)("To say, as the employer would have us

do, that in merger cases the true meaning of s 440.15(3)(u) is

that disability for purposes of that section is the greater of

physical impairment or loss of earning capacity only if there is

a loss of earning capacity is to invoke a limitation or to add

wo rds to the statute not placed there by the Legislature. This

we may not do.") ; Herrera - Lara v. State , 932 So. 2d 1138, 1141

(Fla. 2d DCA 2006) (" Because the legislature did not include the

terms 'temporary tags' or 'temporary license plates' in section

320 .26, we must assume the legislature did not intend for

section 320.26 to apply to those items."); and Childers v. Cape

Canaveral Hosp., Inc. , 898 So. 2d 973, 975 ( Fla. 5th DCA

2005) (" Courts must give statutory language its plain and

ordinary meaning, and i s not at liberty to add words that were

not placed there by the legislature.").

26. The accusation made in Allegation b. that The Pool

People "provid[ed] engineering services directly to a customer"

in connection with each of the Five Pool Projects is lik ewise

not supported by clear and convincing record evidence. The

record reveals that The Pool People was a direct recipient, not

a direct provider, of engineering services. What it contracted

to provide "directly to a customer" in each instance was not a ny

engineering service, but rather a newly - constructed residential

swimming pool, a contractual obligation its certificate of

authority from the CILB authorized it to assume. To fulfill

this contractual obligation, it had to have engineering plans

signed and sealed by a FEMC - licensed engineer. It needed these

plans to apply for the building permit required to commence

construction of the pool. The Pool People obtained these

engineering plans from a FEMC - licensed independent contractor,

not from one of it s "agents, employees, [or] officers," and it

then used the plans to apply for the required building permit.

In doing so, it did not run afoul of any requirement of Section

471.023, Florida Statutes.

27. Because the specific allegations of wrongdoing

co ntained in the Administrative Complaint filed in DOAH Case No.

05 - 0382 are not supported by clear and convincing evidence, the

Administrative Complaint should be dismissed in its entirety.

28. The specific allegations of wrongdoing contained in

Count One of the Administrative Complaint filed in DOAH Case No.

06 - 1581PL are that Mr. Huang violated Section 471.033(1)(j),

Florida Statutes, by signing and sealing engineering plans for

the Shelby Homes Project that were "not prepared by him or under

his responsi ble supervision, direction, or control."

29. There is no record evidence upon which a finding of

fact in DOAH Case No. 06 - 1581PL may be based, much less clear

and convincing evidence, that the Shelby Homes Project

engineering plans were "not prepared by [Mr. Huang] or under his

responsible supervision, direction, or control."

30. The specific allegations of wrongdoing contained in

Count Two of the Administrative Complaint filed in DOAH Case No.

06 - 1581PL are that, in connection with the Shelby Homes Pro ject,

Mr. Huang violated Section 455.227(1)(j), Florida Statutes, and,

thereby, also Section 471.033(1)(a), Florida Statutes, "by

aiding and assisting an unlicensed entity, The Pool People,

Inc., to practice engineering."

31. To prove that Mr. Huang comm itted such wrongdoing, the

FEMC first had to establish by clear and convincing evidence

that The Pool People, the "unlicensed entity" Mr. Huang

allegedly "aided and assisted," engaged in the practice of

engineering (for which it needed to have a certificat e of

authorization from the FEMC). As discussed above, the FEMC

failed meet this threshold requirement (even if it were

appropriate to take into consideration the findings of fact

based on Mr. Barrett's "former testimony" (Findings of Fact 6a. -

e.) in dete rmining Mr. Huang's guilt).

32. Because the specific allegations of wrongdoing

contained in both counts of the Administrative Complaint filed

in DOAH Case No. 06 - 1581PL are not supported by clear and

convincing evidence, the Administrative Complaint shoul d be

dismissed in its entirety.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the BPE dismiss in their entireties the

Administrative Complaints filed in these consolidated cases.

DONE AND ENTERED thi s 29th day of November, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearin gs

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 92 1 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of November, 2006.

ENDNOTES

1 All references to Florida Statutes are to the current version

of Florida Statutes.

2 Among the exhibits, however, were transcripts of two

depositions taken of Paul Martin, Esquire, who serves as both

the chief executive officer of the Flori da Engineers Management

Corporation and the executive director of the Florida Board of

Professional Engineers, as well as the transcript of the

testimony given by Walter Barrett, The Pool People's senior vice

president and chief operating officer, at the f inal hearing in

DOAH Case No. 05 - 1637RU.

3 The undersigned has accepted these factual stipulations. 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 stipula tion is conclusive upon both the

trial and appellate courts in respect to matters which may

validly be made the subject of stipulation . "); Schrimsher v.

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

DCA 1997) (" The hearing officer is boun d by the parties'

stipulations."); and Palm Beach Community College v. Department

of Administration, Division of Retirement , 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 i s binding not only

upon the parties but also upon the trial and reviewing courts.

In addition, no other or different facts will be presumed to

exist.").

4 While all five projects are at issue in DOAH Case No. 05 - 0382,

only the Shelby Homes Project is at issue in DOAH Case No. 06 -

1581PL.

5 The evidentiary record does not include a written contract for

the Jandjel Project.

6 Mr. Huang was not a party in DOAH Case No. 05 - 1637RU.

7 Section 90.803(22), Florida Statutes, which provides for the

admissibil ity of "former testimony," regardless of the

declarant's availability to testify, under certain

circumstances, including where "the party against whom the

testimony is now offered . . . or a person with a similar

interest, had an opportunity and similar mo tive to develop the

testimony by direct, cross, or redirect examination," has been

declared unconstitutional, and it therefore cannot be relied on

by Petitioner in attempting to prove its case against Mr. Huang.

See Grabau v. Department of Health , 816 So. 2d 701, 709 (Fla.

1st DCA 2002).

8 Contrary to the position taken by Respondents in their

Proposed Recommended Order, the undersigned is of the view that,

when Mr. Barrett's testimony is read in its entirety, it is

clear, not uncertain, that The Pool Pe ople's routine practices

regarding the "handl[ing] of engineering services" that

Mr. Barrett described in his testimony had existed "for many

years," including the entire period of its association with

Mr. Huang. The undersigned has found that, with respe ct to the

Five Pool Projects, The Pool People acted in accordance with

these routine practices, there being no evidence of any

deviation therefrom. See Florida East Coast Properties v.

Coastal Construction Products, 553 So. 2d 705, 706 (Fla. 3d DCA

1989)( "With regard to the materials which Coastal delivered to

the work site, we conclude that there was sufficient evidence to

support an award. Coastal's sales tickets, signed in each

instance by a Moore employee, indicated that these five orders

were placed for delivery by Coastal to the Flamingo job site.

Coastal's witness testified that the routine business practice

in the execution of such an order was to deliver it to the

address indicated. . . . FECP made no showing to the contrary,

but simply contende d that Coastal's proof was insufficient. An

award was proper, therefore, for the five orders in the amount

of $ 6,024.20."); and § 90.406, Fla. Stat. (" Evidence of the

routine practice of an organization, whether corroborated or not

and regardless of the presence of eyewitnesses, is admissible to

prove that the conduct of the organization on a particular

occasion was in conformity with the routine practice.").

9 The Administrative Complaint has five counts in toto , one

related to each project.

10 At all material times, Subsection (3) of Section 471.033,

Florida Statutes, has provided as follows:

When the board finds any person guilty of

any of the grounds set forth in subsection

(1), it may enter an order imposing one or

more of the following penalties:

(a) Denial of an application for licensure.

(b) Revocation or suspension of a license.

(c) Imposition of an administrative fine

not to exceed $5,000 for each count or

separate offense.

(d) Issuance of a reprimand.

(e) Placement of the licens ee on probation

for a period of time and subject to such

conditions as the board may specify.

(f) Restriction of the authorized scope of

practice by the licensee.

(g) Restitution.

11 "Whether one party is a mere agent rather than an independent

con tractor as to the other party is to be determined by

measuring the right to control . . . ." Parker v. Domino's

Pizza , 629 So. 2d 1026, 1027 (Fla. 4th DCA 1993). "Generally, a

contractor is not a true agent where the principal controls only

the outcome o f the relationship, not the means used to achieve

that outcome." Theodore v. Graham , 733 So. 2d 538, 539 (Fla.

4th DCA 1999).

COPIES FURNISHED :

Bruce A. Campbell, Esquire

Florida Engineers Management Corporation

2507 Calloway Road, Suite 200

Tallahas see, Florida 32303 - 5267

William R. Clayton, Esquire

David O. Batista, Esquire

Greenberg Traurig, P. A.

East Las Olas Boulevard, Suite 2000

Fort Lauderdale, Florida 33301

Paul J. Martin, Executive Director

Florida Board of Professional Engineers

2507 C alloway Road, Suite 200

Tallahassee, Florida 32303 - 5267

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Patrick Greehan, Esquire

Chief Pros ecuting Attorney

Florida Engineers Management Corp.

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

N OTICE OF RIGHT TO SU BMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommen ded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in these cases.