05-001637RU The Pool People, Inc. vs. Board Of Professional Engineers Status: Closed DOAH Final Order on Thursday, December 1, 2005.

Summary: Respondent`s statements in an Administrative Complaint and in a Notice to Cease and Desist are not "rules" that can be challenged under Section 120.56(4), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE POOL PEOPLE, INC., )

)

Petitioner, )

)

vs. ) Case No. 05 - 1637RU

)

BOARD OF PROFESSIONAL )

ENGINEERS, )

)

Respondent. )

)

FINAL ORDER

Pursuant t o notice, a final hearing was held in this case

on July 21, 2005, in Tallahassee, Florida, before Administrative

Law Judge Michael M. Parrish of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Julie Gallagher, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Tallahassee, Florida 32302

For Respondent: Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUES

This is a case in which the Petitioner, pursuant to Section

120.56(4), Florida Statutes, 1 seeks a determination that certain

statements by the Res pondent constitute rules that the

Respondent has failed to promulgate in accordance with Section

120.54, Florida Statutes. The statements on which the

Petitioner seeks a determination are described in the

Petitioner’s initial petition and in two supplemen ts to the

initial petition.

PRELIMINARY STATEMENT

The issues in this case arise from a related case which is

also pending before the Division of Administrative Hearings.

The related case is DOAH Case No. 05 - 0382, Florida Engineers

Management Corporation v. The Pool People, Inc. , in which The

Pool People, Inc., is charged in a five - count Administrative

Complaint with violations of Section 471.031(1)(a), Florida

Statutes, by practicing engineering without a license.

Proceedings in DOAH Case No. 05 - 0382 hav e been abated pending

disposition of the instant case.

At the final hearing in this case the Petitioner presented

the testimony of two witnesses. The Petitioner also offered

four exhibits, all of which were received in evidence. The

Respondent did not ca ll any witnesses and did not offer any

exhibits.

At the conclusion of the hearing the parties agreed to a

deadline of September 23, 2005, for the filing of their proposed

recommended orders. The transcript of the hearing was filed on

August 18, 2005, and thereafter all parties filed timely

Proposed Final Orders. The parties’ proposals have been

carefully considered during the preparation of this Final Order.

FINDINGS OF FACT

1. The Petitioner is the The Pool People, Inc., a Florida

corporation with its principal office located at 2150 Southwest

10th Street, Deerfield Beach, Florida 33442. The Petitioner is

qualified to construct swimming pools under Chapter 489, Florida

Statutes, through its qualifying agent, Mr. Daniel Lowe, a

Florida licensed swimming pool contractor. The Petitioner holds

certificate number QB 0002429 issued by the Construction

Industry Licensing Board; Mr. Lowe holds license number CPC

039909, issued by the same board. The Petitioner has engaged in

the business of constructing resid ential swimming pools in

Florida since 1987.

2. The Respondent is the Florida Board of Professional

Engineers, located at 2507 Callaway Road, Suite 200,

Tallahassee, Florida 32303 - 5267. The Respondent is charged with

regulating the practice of profession al engineering in the State

of Florida, pursuant to Chapter 471, Florida Statutes, and the

rules promulgated thereunder at Florida Administrative Code

Rules 61G15 - 18.001 - 37.001.

3. The Petitioner does business in Broward, Palm Beach,

Martin, St. Lucie, Co llier, and Lee Counties. Approximately 90

percent of the Petitioner’s customers are contractors/developers

who are constructing housing developments and who contract with

the Petitioner to build pools on individual home sites in the

development. The rema ining 10 percent of the Petitioner’s

business is derived from the construction of pools pursuant to

contracts with individual homeowners. In the context of

contractor/developer contracts, the contractor/developer is the

Petitioner’s customer. In contract s with individual homeowners,

the homeowner is the Petitioner’s customer.

4. The Petitioner’s pre - construction activities, including

specifically the preparation of plans and securing building

permits, vary to some extent depending on the county in which

the construction is to occur. There is, however, a common theme

for almost all of the pools constructed by the Petitioner.

First, all of the engineering criteria for the pools it

constructs are developed by a Florida licensed engineer.

Second, those cri teria, including, but not limited to, floor

thickness, wall thickness, main drain placement, and beam

thickness, typically are identical from pool to pool. Third,

the criteria are developed and converted into a portion of a

full set of plans without refer ence to a specific construction

contract. Fourth, the plans for a specific pool are finalized

using the previously developed and stored set of engineering

construction detail drawings and any items unique to the

specific job. When and where required, the Petitioner’s plans

are reviewed, signed, and sealed by a Florida licensed engineer

under contract to the Petitioner, whose compensation is not tied

to the “production” of a specific set of plans. Rather, the

engineer is paid monthly a flat fee based on a projected hourly

rate of ten hours per week to review, revise, sign, and seal

plans.

5. All counties in Florida require individual building

permits for the construction of a pool, but the manner in which

the actual plans for each individual pool are prep ared and

submitted, and the degree of review by a professional engineer,

may vary , depending on the county. In certain counties, the

Petitioner files a master set of detailed engineering plans,

depicting specific construction details, for the various pool s

it will construct. Then, as the Petitioner seeks permits for

the construction of a particular pool, it simply submits a

permit application and a diagrammatical reference to the pool

location on the property; no other engineering review or sign -

off is re quired. In other counties, each application for a

construction permit must contain a complete set of construction

plans. Each of those sets includes both previously developed

engineering construction details and the details depicting the

location of the pool on the building site. The entire set of

plans is reviewed, signed, and sealed by a Florida licensed

engineer prior to submission to the local building department.

6. To obtain any appropriate and necessary engineering

drawings for a pool it has cont racted to build, the Petitioner

has contracted with a private Florida licensed engineer to

develop the engineering criteria for its pools and then to

review, make such modifications as may be necessary, and sign

and seal the plans. The engineer visits the company’s premises

twice weekly and reviews such plans as are ready for his review.

He is compensated on a flat fee basis regardless of the number

of plans reviewed. The Petitioner then files the plans with the

appropriate local building department, obt ains a building

permit, and builds the pool. The engineering drawings are the

property of the Petitioner and are delivered to the Petitioner

by the engineer . They are not delivered to the client of the

Petitioner who contracted for a pool.

7. The Constr uction Industry Licensing Board, which

authorizes the Petitioner to do business as a swimming pool

construction company has never advised the Petitioner that it

was operating outside the scope of its permitted authority.

8. The manner in which the Petitio ner operates with

respect to the preparation and use of engineering drawings

necessary to obtain a building permit is a common practice in

the pool - building business in Florida.

9. On or about May 24, 2004, the Respondent served a

Notice to Cease and Des ist upon the Petitioner. The Notice to

Cease and Desist reads as follows in pertinent part:

You are hereby ordered by the FLORIDA BOARD

OF PROFESSIONAL ENGINEERS to Cease and

Desist from the unlicensed and illegal

practice of Engineering.

You are notifie d that the following

specifically described conduct constitutes

the unlicensed practice of engineering:

Filing engineering plans signed and

sealed by a professional engineer

employed by a corporation that does not

have a Certificate of Authorization as

re quired by Section 471.023, Florida

Statutes.

Providing engineering services directly

through a corporation that does not

have a Certificate of Authorization as

required by Section 471.023, Florida

Statutes.

Possessing, storing or acting as

custodian for the seal of a

professional engineer on premises of a

corporation that does not have a

Certificate of Authorization.

Pursuant to Chapter 471, Florida Statutes,

only persons or firms licensed by the

Florida Board of Professional Engineers may

practice engin eering in the State of

Florida. The unlicensed practice of

engineering is made a crime by Section

471.031, Florida Statutes. Additionally,

the Board of Professional Engineers is

authorized by Sections 455.228 and 471.031

to impose a fine of up to $5,000 for each

incident of the unlicensed practice of

engineering.

10. The Petitioner declined to comply with the Notice to

Cease and Desist because it did not believe it had offered

engineering services to the public.

11. On or about December 20, 2004, the R espondent filed a

five - count Administrative Complaint against the Petitioner in

which it was alleged that the Petitioner had offered

professional engineering services to the public on five

occasions. The Administrative Complaint also alleged that each

of those five occasions constituted the unlicensed practice of

engineering because the Petitioner did not have a certificate of

authority to provide engineering services in Florida at the time

of any of the occasions alleged in the Administrative Complaint.

The Administrative Complaint reads as follows, in pertinent

part:

ADMINISTRATIVE COMPLAINT

The Florida Board of Professional

Engineers files with the Department of

Business and Professional Responsibility

this Administrative Complaint against The

Pool P eople, Inc., and alleges:

1. The Board of Professional Engineers is

charged with deterring the unlicensed

practice of engineering pursuant to Section

471.038(5) and Chapter 455, Florida

Statutes.

2. Respondent is a Florida corporation

with a principa l office at 2150 SW 10th

Street, Deerfield Beach, Florida 33442.

3. Respondent does not have and has never

had a Certificate of Authorization to

provide engineering services in the State of

Florida.

4. On or about May 24, 2004, Petitioner

served upon respondent a Notice to Cease and

Desist the unlicensed practice of

engineering, a copy of which is attached and

incorporated in this Administrative

Complaint as “Exhibit A”. [sic]

COUNT ONE

5. Petitioner realleges and incorporates

paragraphs 1 throug h 4 as if fully set forth

in this Count One.

6. On or about June 10, 2004, Respondent,

through its qualifying individual

contractor, filed an application for a

permit to build a pool for an owner, Vista

Builders, at 16326 78th Road North, in Palm

Beach County, Florida.

7. The Vista Builders application

included 4 pages of engineering plans signed

and sealed on June 9, 2004, by Ming Z.

Huang, P.E.

8. On information and belief, Respondent

employed Mr. Huang to provide engineering

services included in its contract with Vista

Builders.

9. 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 ha ve 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.

10. Based on the foregoing, Respondent

violated Section 471.031(1)(a), Florida

Statutes, by practicing engineering without

a license. [2]

12. The Respondent has not promulgated as rules any of the

statements in the Notice to Cease and Desist or in th e

Administrative Complaint described above.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over this case. § 120.56(4), Fla. Stat.

14. Section 120.56(4), Florida Statutes, reads as follows,

in pertinent part:

(4) CHAL LENGING AGENCY STATEMENTS DEFINED

AS RULES; SPECIAL PROVISIONS. --

(a) Any person substantially affected by

an agency statement may seek an

administrative determination that the

statement violates s. 120.54(1)(a). The

petition shall include the text of the

statement or a description of the statement

and shall state with particularity facts

sufficient to show that the statement

constitutes a rule under s. 120.52 and that

the agency has not adopted the statement by

the rulemaking procedure provided by s.

1 20.54.

* * *

(c) The administrative law judge may

determine whether all or part of a statement

violates s. 120.54(1)(a). The decision of

the administrative law judge shall

constitute a final order. . . .

* * *

(d) When an administrative law judge

enters a final order that all or part of an

agency statement violates s. 120.54(1)(a),

the agency shall immediately discontinue all

reliance upon the statement or any

substantially similar statement as a basis

for agency action.

* * *

15. The facts and circumstances presented in this case are

remarkably similar to the facts and circumstances in United

Wisconsin Life Insurance Company v. Florida Department of

Insurance , DOAH Case No. 01 - 3135RU (Final Order issued

November 27, 2001); affirmed , 83 1 So. 2d 239 (Fla. 1st DCA

2002). That case, like this one, arose from an administrative

complaint. And in that case, like this one, the challenged

agency statements arose from statements made by the agency in

the Administrative Complaint. 3 The conclusi ons of law in the

Final Order in the United Wisconsin case include the following

pertinent conclusions:

55. The Petition challenges three

Department statements defined as rules. A

Department statement that is the equivalent

of a rule must be adopted ac cording to the

rulemaking procedures in the Florida

Administrative Procedure Act, Chapter 120,

Florida Statutes (APA). Environmental

Trust, Inc. v. State Department of

Environmental Protection , 714 So. 2d 493

(Fla. 1st DCA 1998) and Christo v. State

Depar tment of Banking & Finance , 649 So. 2d

318 (Fla. 1st DCA 1995).

56. In a proceeding pursuant to Section

120.56(4), Florida Statutes, the issue to be

decided is whether the challenged Department

statement “violates s. 120.54(1)(a).” That

section provide s in relevant part:

(a) Rulemaking is not a matter of agency

discretion. Each agency statement

defined as a rule by s. 120.52 shall be

adopted by the rulemaking procedure

provided by this section as soon as

feasible and practicable.

57. Section 120.52 (15), Florida Statutes,

defines “rule” in relevant part as follows:

“Rule” means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy

or describes the procedure or practice

requirements of an agency and in cludes

any form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing

rule.

* * *

61. The first question to be resolved is

whether any of the three statements

challenged by United meet the d efinition of

a “rule” as that term is defined in Section

120.52(15), Florida Statutes. If the

statements alleged to be rules in the

Complaint are not rules, then the inquiry

needs to go no further.

62. In determining whether or not these

statements amo unt to rules by definition, it

is important to note as a threshold matter,

that for the purposes of this order, the

merit, or lack thereof, of the Department’s

position in the Complaint is not at issue

here. In other words, whether the facts

asserted in t he complaint can be proven, and

if so, whether they are violations of the

Florida Insurance Code, are matters which

await decision on another day.

63. Rulemaking is required only for an

agency statement that is the equivalent of a

rule, which is defined in Section

120.52(15), Florida Statutes. Environmental

Trust, Inc. v. State Department of

Environmental Protection , 714 So. 2d 493,

498 (Fla. 1st DCA 1998).

64. It would be inappropriate to

speculate in this Order, as to whether the

Department may hav e made statements

reflecting generally applicable policies

substantially affecting parties through

other media which are similar to the

allegations of the Complaint. What is

clear, however, is that the matters alleged

in the Complaint, which are the subje ct of

this litigation, are not agency statements.

65. [The statutory provisions which form

the basis for the Administrative Complaint]

are penal in nature. Some of the sections

. . . provide for criminal sanctions. They

are announcements of policy ena cted into law

by the Florida Legislature. They represent

the policy of the state. Because the

Department is the agency charged with

implementing these statutes, the Department

is free to allege facts which might prove to

be violations of these statutes, without

resort to explanatory rules.

66. It seems unlikely that the Florida

Legislature intended that allegations under

a prohibitory or penal statute could be

subject to collateral attack through a

Section 120.54, Florida Statutes, rule

challenge. Suc h a procedure could result in

two hearings each time a regulatory action

was brought by an agency. In the pursuit of

justice through the administrative process,

simplicity and economy of resources are

primary goals. Permitting collateral

challenges in en forcement cases unreasonably

derogate those goals.

67. In any event, the “statements”

alleged in the Petition to be rules by

definition, are not statements of the

Department. They are p leadings pertaining

to alleged violations of a Florida Statute.

Th erefore they are not rules by definition.

It is further apparent that the proper forum

for the resolution of the matters contained

in the Complaint is a proceeding pursuant to

Section 120.57(1), Florida Statutes.

16. The above - quoted conclusions of law met with the

approval of the appellate court. The decision on appeal in

United Wisconsin (at 831 So. 2d 239) reads as follows:

PER CURIAM.

This administrative case involves a

collateral challenge by appellant United

Wisconsin Life Insurance Company (Unit ed

Wisconsin) to certain allegations in a

section 120.57, Florida Statutes,

administrative proceeding brought by the

Department of Insurance against United

Wisconsin. United Wisconsin contended

unsuccessfully before an administrative law

judge that specif ied allegations in the

administrative complaint were in fact

unpromulgated rules prohibited by section

120.54, Florida Statutes. We affirm for two

reasons.

First, United Wisconsin made no showing of

any statement of general applicability so as

to require rulemaking by the Department.

See § 120.52(15), Fla. Stat. (2000). The

issues raised by the Department’s complaint

arose for the first, and so far, only, time

as a result of certain of United Wisconsin’s

underwriting practices. The Department’s

admini strative complaint alleged that these

practices are facial violations of certain

regulatory statutes.

Also, we agree with the administrative law

judge that, on the present facts, United

Wisconsin has no right to pursue a separate,

collateral challenge to an alleged nonrule

policy where an adequate remedy exists

through a section 120.57 proceeding. United

Wisconsin does not dispute the assertion

that it was free to make, and in fact did

make, the same arguments raised in this case

in the then - pending secti on 120.57

proceeding. United Wisconsin has an

adequate forum in the section 120.57,

Florida Statutes, proceeding, and the now -

pending appeal of the Department’s final

order in that case. We, of course, make no

intimation as to the merits of that case.

A FFIRMED

17. For the reasons quoted above from the Final Order and

from the appellate opinion in United Wisconsin , the petition in

this case must be dismissed. The agency “statements” in the

Notice to Cease and Desist and in the Administrative Complaint

are not rules because, among other reasons, they are not

statements of general applicability. Rather, they are

statements addressed to a specific party about specific conduct

that the Board believes is a violation of specified statutory

provisions. Such statements are not rules by definition.

18. Further support for this conclusion is found in

Environmental Trust v. Department of Environmental Protection ,

714 So. 2d 493 (Fla. 1st DCA 1998), in which the court stated,

at page 498:

An agency statement ex plaining how an

existing rule of general applicability will

be applied in a particular set of facts is

not itself a rule. If that were true, the

agency would be forced to adopt a rule for

every possible variation on a theme, and

private entities could con tinuously attack

the government for its failure to have a

rule that precisely addresses the facts at

issue. Instead, these maters are left for

the adjudication process under section

120.57, Florida Statutes.

To similar effect, see Dedakis v. Florida Real Estate

Commission , 388 So. 2d 22 (1st DCA 1980)(“We find that the

Commission has followed the statute and that the matter does n ot

require adoption of a rule.” ) .

FINAL ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED:

Th at the Petition for Administrative Hearing to Determine

Invalidity of Agency Statements Defined as a Rule is dismissed

and all relief sought in the petition is denied.

DONE AND ORDERED this 1st day of December, 2005, in

Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

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 C lerk of the

Division of Administrative Hearings

this 1st day of December, 2005.

ENDNOTES

1/ All references to the Florida Statutes are to the current

version of the statutes unless otherwise indicated.

2/ Counts Two through Five of the Administrative Complaint are

identical to Count One with the exception of the names of the

customers and the dates of the events alleged.

3/ In the United Wisconsin case there is no mention of an

underlying Notice to Cease and Desist. Nevertheless, the

conclusions r eached in United Wisconsin are applicable here. It

is also noted that the petition in this case has been treated as

a challenge to the statements made in the Notice to Cease and

Desist and in the Administrative Complaint because those are the

only "statem ents" actually made by the agency that are described

in the petition. The second supplement to the petition states

that "the three agency statements described in petitioner's

petition are not quotations, per se, but, rather are policy

statements or positi ons inferred from the allegations contained

in the Administrative Complaint or the Notice to Cease and

Desist." [Emphasis added.] To the extent that the petition seeks

to challenge anything other than statements in the text of the

Administrative Complaint or the Notice to Cease and Desist, the

petition exceeds what is authorized by Section 120.56(4), Florida

Statutes.

COPIES FURNISHED :

Julie Gallagher, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Tallahassee, Florida 32302

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 323 99 - 1050

Bruce A. Campbell, Esquire

Florida Engineers Management

Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

Scott Boyd

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland Building, Ro om 120

Tallahassee, Florida 32399 - 1300

Paul J. Martin, Executive Director

Board of Professional Engineers

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

Doug Sunshine, Esquire

Vice President for Legal Affairs

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review pro ceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.