05-003215PL Florida Engineers Management Corporation vs. Fred C. Jones, P.E. Status: Closed Recommended Order on Tuesday, May 2, 2006.

Summary: The allegations of negligence and misconduct in drawing plans were not supported by clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION , )

)

Petitioner , )

)

vs. ) Case Nos. 05 - 3215PL

) 05 - 3216PL

FRED C. JONES, P.E. , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

formal hearing in this proceeding on January 10 and 11, 2006, in

Bradenton, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner : Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation

2507 Calloway Road, Suite 200

Tallahassee, Florida 32303

For Respondent: Dominic C. MacKenzie, Esquire

Holl and & Knight LLP

50 North Laura Street, Suite 3900

Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

The issues presented are whether Respondent signed and

sealed negligent drawings for one single - family residence and

provided plan review certification for two other projects

designed by Respondent in violation of Subsections 471.033(1)(g)

and 553.791(3), Florida Statutes (2002), and Florida

Administrative Code Rule 61G15 - 19.001(6)(n). 1

PRELIMINARY STATEMENT

On May 3, 20 04, Petitioner filed an Administrative

Complaint against Respondent in what became DOAH Case

No. 05 - 3215PL. On April 7, 2005, Petitioner filed an Amended

Administrative Complaint against Respondent in what became DOAH

Case No. 05 - 3216PL. The two complai nts are referred to

hereinafter as the " charging documents. "

Respondent requested a formal hearing. Petitioner referred

the matters to DOAH, and the two charging documents were

consolidated into one consolidated proceeding.

At the hearing, Petitioner presented the testimony of three

witnesses and submitted 10 exhibits for admission into evidence.

Respondent testified in his own behalf, presented the testimony

of four witnesses, and submitted 10 exhibits for admission into

evidence. The identity of th e witnesses and exhibits and the

rulings regarding each are reported in the Transcript of the

hearing filed with DOAH on February 13, 2006.

The ALJ granted Respondent ' s unopposed motion to extend the

time for filing proposed recommended orders (PROs) unti l

April 3, 2006. Petitioner and Respondent timely filed their

respective PROs on March 31 and April 3, 2006.

FINDINGS OF FACT

1. The Board of Professional Engineers (Board) is charged

with regulating the practice of engineering pursuant to

Chapter 455, F lorida Statutes. Section 471.038, Florida

Statutes, authorizes Petitioner to provide the Board with

administrative, investigative, and prosecutorial services.

2. Respondent is licensed in the state as a professional

engineer pursuant to license number PE 54476. It is undisputed

that Respondent is a private provider within the meaning of

Subsection 553.791(1)(g), Florida Statues.

3. On October 29, 2002, Respondent signed and sealed

drawings for a single - family residence identified in the record

as the Barnes residence. It is less than clear and convincing

that the drawings for the Barnes residence are deficient.

4. The testimony of Respondent ' s expert witness was

credible and persuasive. The applicable standard of care does

not require the relevant drawings to include multiple ridge

heights in order to describe the nature and character of the

work to be performed with sufficient clarity.

5. It is less than clear and convincing that the ridge

heights in the drawings are unequal. Additional ridge height

information would have been non - critical information that may

have been interpreted as specific construction requirements and

lead to confusion, added costs, conflicting interpretations, and

potential hazards in buildings.

6. It is less than cle ar and convincing that the drawings

for the Barnes residence insufficiently show heights of the

eaves or lintels and sills. The plans can be easily understood

by tradesmen and inspectors. The typical wall section at page 4

of the plans addresses eaves, l intels, and sills.

7. The ridge height requirements in Manatee County,

Florida (the County), are intended to ensure compliance with

maximum height restrictions. The mean heights in the drawings

adequately address the maximum local height ordinances.

8. It is less than clear and convincing that the roof

entry plan provided insufficient clarity. The roof was

constructed according to the local code requirements without

apparent exception. The evidence does not support a finding

that the roof entry plan, the ridge heights, lintels, eaves, and

sills were insufficiently clear to describe the nature and

character of the work to be performed.

9. Clear and convincing evidence does not support a

finding that the wind uplift for roof trusses in the plans was

inc orrect or unclear. If the wind load calculations were found

to be deficient, the specified fittings were sufficient to

withstand wind loads that exceeded the calculations of

Petitioner ' s expert by approximately 70 percent.

10. Wind load calculations are intended to ensure a roof

will sustain the load and will not blow off of the house. The

fittings were sufficient to secure the roof against the

projected wind load.

11. Clear and convincing evidence does not support a

finding that the drawings failed to specify the applicable

masonry inspection requirements. The evidence is less than

clear and convincing that special masonry inspections are

required for single - family residences of two stories or less.

A masonry inspection is required for such struct ures when a

building inspector finds a need for such an inspection.

12. It is less than clear and convincing that the drawings

fail to adequately specify the splice lengths of the bond beam

reinforcement for tension, compression, intersections, and

corne rs. The requisite evidence does not support a finding that

the plans deviate from the standard of care in the community.

13. Clear and convincing evidence does not support a

finding that Respondent failed to comply with applicable soil

condition requirem ents. The County did not require soil

conditions on plans at the time Respondent drew the plans.

14. From sometime in the 1940s through November 2003, the

County permitted engineers to assume soil conditions with a

ground load of 2000 pounds per square f oot. Respondent drew the

plans for the Barnes project in 2002.

15. The testimony of Petitioner ' s expert does not relate

to facts in evidence. The expert did not know County allowances

for soil conditions at the time Respondent drew the plans.

16. Th e evidence is less than clear and convincing that

the design of the concrete footings cannot be verified from the

plans. Nor does the requisite evidence support a finding that

the plans do not specify reinforcement of the thickened edge

under a load beari ng wood stud wall at the garage.

17. The plans include two reinforcement specifications for

the thickened edge under the load bearing wood stud wall at the

garage. The specifications include welded wire mesh and

reinforced steel bars.

18. Clear and conv incing evidence does not support a

finding that Respondent supplied or submitted the Barnes plans

for permit. Without such a finding, Respondent was not required

to prepare, submit, or seal a site plan.

19. A site plan for the Barnes residence exists in the

file of the County Building Department (Department). A

Department representative confirmed that the site plan is

sufficient and that an engineer of record is not required to

prepare, submit , or seal a site plan unless the engineer of

record actually submits the plans for a permit.

20. On February 24 and March 7, 2003, Respondent signed

and sealed drawings for respective projects at 14815 Coker Gully

Road, Myakka, Florida (the Coker project) , and 705 50 th Avenue,

Plaza West, Bradenton, Florida (th e Yonkers project). Pursuant

to Section 553.791, Florida Statutes, Respondent entered into a

contract with an entity identified in the record as Griffis

Custom Homes (Griffis) to provide either building code plans or

inspection services, or both.

21. Prior to the commencement of the two projects in

question, the Department expressly permitted an engineer to

provide building code inspection services involving buildings

designed or constructed by the engineer. Respondent prepared

pri vate provider affid avits, obtained additional insurance, had

forms made, and prepared to provide inspections services.

22. Respondent immediately ceased his activities when

Department officials objected to Respondent ' s stated intention

of providing " private provider " buildi ng code inspection

services for the Coker and Yonkers projects. The separate

owners of the two projects withdrew their applications as

" private provider " projects.

23. The Department processed the projects, performed all

inspections, and issued a certi ficate of occupancy for each

project. Neither the Department, Petitioner, nor the Board,

ever served Respondent with a Notice of Non - compliance.

24. If it were found that Respondent committed the alleged

violation, the violation was minor. There is no evidence of any

economic or physical harm, or significant threat of harm, to a

person or to the health, safety, or welfare of the public.

There is no evidence that Respondent has any prior discipline

against his license.

CONCLUSIONS OF LAW

25. DOAH has jurisdiction over the parties and subject

matter in this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

(2005). DOAH provided the parties with adequate notice of the

formal hearing.

26. During the hearing, the undersigned reserved ruling on

Respondent ' s objections to the admissibility of Petitioner ' s

Exhibits 10 and 11. The first document is a letter written by

Respondent to Petitioner during the agency ' s investigation of

the complaints against Respondent.

27. The out - of - court statements attributed to Respondent

in Petitioner ' s Exhibit 10 are admissions by a party opponent

and are admissible in evidence for the truth of the matter

stated, even though Respondent denies the admissions.

§ 90.803(18)(a), Fla. Stat. (2005); Lee v. Department of Health

and Rehabilitative Services , 698 So. 2d 1194, 1200 (Fla. 1997);

Christopher v. State , 583 So. 2d 642, 645 (Fla. 1991); Costa v.

School Board of Broward County , 701 So. 2d 414, 415 (Fla. 4th

DCA 1997) ; Seabord Coast Line Railroad Company v. Nieuwendaal ,

253 So. 2d 451, 452 (Fla. 2d DCA 1971).

28. The admissions in Petitioner ' s Exhibit 10 need not be

statements against the interest of Respondent to be admissible.

They are admissible because they are the Respondent ' s own

statements, and he cannot complain that he was not afforded the

opportunity to cross - examine himself. State v. Elkin , 595 So.

2d 119, 120 (Fla. 3d DCA 1992); Adams v. School Board of Brevard

County , 470 So. 2d 760, 762 (Fla. 5th DCA 1985).

29. Petitioner ' s Exhibit 11 is a report authored by

Petitioner ' s expert witness in preparation for the formal

hearing. The expert testimony and report were submitted for the

sole purpose of assisting the trier of fact, by the expert ' s

education, training, and experience, in reaching findings

concerning the alleged negligence.

30. The report is 12 pages long. It contains various

types of information, including statements of knowledge or

intent on the part of various witnesses at the hearing and

Respondent. Issues of knowledge and intent do not requir e

expert testimony , but are factual issues susceptible of ordinary

methods of proof. Dunham v. Highlands County School Board , 652

So. 2d at 896; Heifetz v. Department of Business Regulation,

Division of Alcoholic Beverages & Tobacco , 475 So. 2d at 1281.

31. The fact portion of the written report is not

admissible as a public record or report prepared by a state

agency. § 90.803(8), Fla. Stat. (2005); Lee , 698 So. 2d at

1201. The fact portion of the expert ' s written report is a

record setting forth fact ual findings resulting from an

investigation conducted pursuant to authority granted by law.

Unlike the federal rule, Florida specifically excludes such

reports. Lee , 698 So. 2d at 1201.

32. That part of the report that attributes out - of - court

stateme nts to Respondent is admissible. § 90.803(18)(a), Fla.

Stat. (2005). The remainder of the report is admitted because

it explains or supplements expert testimony during the hearing.

§ 120.57(1)(c), Fla. Stat. (2005).

33. In relevant part, Petitioner cha rges that Respondent

committed " negligence " and " misconduct " in violation of

Subsection 471.033(1)(g), Florida Statutes. The quoted terms

are not defined by statute.

34. The applicable rule defines " negligence " to mean the

failure to utilize " due care " in engineering or failing to have

" due regard " for applicable standards of engineering principles.

Fla. Admin. Code R. 61G15 - 19.001(4). Petitioner may not

interpret the terms " due care " and " due regard " in a manner that

enlarges, modifies, or contravene s the statute implemented.

§ 120.52(8), Fla. Stat. (2005).

35. If the agency were to interpret the terms " due care "

and " due regard " in a manner that enlarged, modified, or

contravened the statute implemented, the interpretation would be

tantamount to a legislative function and risk violation of the

separation of powers clause. In relevant part, the separation

of powers clause prohibits the executive branch and its

administrative agencies from performing any legislative

function. Art. 2, § 3 , Fla. Co nst. ; Ch. 20, Fla. Stat. (2005).

36. The non - delegation doctrine is a judicial corollary to

the separation of powers clause. The non - delegation doctrine

requires the legislature to provide standards and guidelines in

an enactment that are ascertaina ble by reference to the terms of

the enactment. Bush v. Shiavo , 885 So. 2d 321 (Fla. 2004); B.H.

v. State , 645 So. 2d 987, 992 - 994 (Fla. 1994); Askew v. Cross

Key Waterways , 372 So. 2d 913, 925 (Fla. 1978).

37. The doctrine prohibits the legislature fr om delegating

to the executive branch power to enact a law or the right to

exercise unrestricted discretion in applying the standards of

" due care " and " due regard. " Statutes granting power to the

executive branch must clearly define the power delegated,

preclude unbridled discretion, preclude the enlargement or

modification of the law implemented, and ensure the availability

of meaningful judicial review. Shiavo , 885 So. 2d at 332. See

also Harrington & Co. v. Tampa Port Authority , 358 So. 2d 168,

170 ( Fla. 1978)(statutory standard of " due regard " is a

delegation of undefined power by the legislature and is

tantamount to an abdication of lawmaking responsibility).

38. The agency ' s interpretation of statutory terms is not

infused with policy considera tions and is not entitled to

deference. The agency did not articulate in the record , the

underlying technical reasons for deference to agency expertise

in the interpretation of statutory terms. Johnston, M.D. v.

Department of Professional Regulation, Boa rd of Medical

Examiners , 456 So. 2d 939, 943 - 944 (Fla. 1st DCA 1984).

39. The issue of whether Respondent breached the

applicable standard of care is a factual issue susceptible to

ordinary methods of proof. Gross v. Department of Health , 819

So. 2d 99 7, 1003 (Fla. 5th DCA 2002). The burden of proof is on

Petitioner to show by clear and convincing evidence that

Respondent committed the acts alleged in the charging documents

and the reasonableness of the proposed penalty. Department of

Banking and Fina nce, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

40. Only competent and substantial evidence may be

considered as clear and convincing. In a li cense discipline

proceeding, the term " competent and substantial evidence " takes

on vigorous implications that are not present in other types of

agency action. Robinson v. Florida Board of Dentistry,

Department of Professional Regulation , 447 So. 2d 930, 932 (Fla.

3d DCA 1984).

41. The requirement for clear and convincing evidence

imposes an intermediate level of proof on Petitioner.

Petitioner must prove material factual allegations by more than

a preponderance of the evidence, but the proof need not be

beyond and to the exclusion of a reasonable doubt. Inquiry

Concerning a Judge No. 93 - 62 , 645 So. 2d 398, 404 (Fla. 1994);

Lee County v. Sunbelt Equities, II, Limited Partnership , 619 So.

2d 996, 1006 n. 13 (Fla. 2d DCA 1993).

42. Inculpatory evidence i s clear and convincing if it is

credible, material facts are " distinctly remembered, " testimony

is " precise " and " explicit, " and the inculpatory evidence is of

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

firm belief or conviction, witho ut hesitancy, as to the truth of

the allegations that Petitioner seeks to establish. Inquiry

Concerning a Judge , 645 So. 2d at 404. The judicial definition

of clear and convincing evidence has been adopted by each

District Court of Appeal in the state. E.F. v. State , 889 So.

2d 135, 139 (Fla. 3d DCA 2004); McKesson Drug Co. v. Williams ,

706 So. 2d 352, 353 (Fla. 1st DCA 1998); Kingsley v. Kingsley ,

623 So. 2d 780, 786 - 787 (Fla. 5th DCA 1993); Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

43. In weighing the inculpatory evidence in this

proceeding, the fact - finder resolved any conflicts in the

evidence and decided the issue one way or the other. Dunham ,

652 So. 2d 894, 896 (Fla. 2d DCA 1995); Heifetz , 475 So. 2d

1277, 1281 (Fla. 1st DCA 1985); Department of Professional

Regulation v. Wagner , 405 So. 2d 471, 473 (Fla. 1st DCA 1981).

In resolving evidential conflicts, the fact - finder assessed the

credibility of witnesses and weighed the evidence, including the

admissions attributed to Res pondent. Bejarano v. State,

Department of Education, Division of Vocational Rehabilitation ,

901 So. 2d 891, 892 (Fla. 4th DCA 2005); Hoover, M.D. v. Agency

for Health Care Administration , 676 So. 2d 1380, 1384 (Fla. 3d

DCA 1996); Goss v. District School B oard of St. Johns County ,

601 So. 2d 1232, 1234 (Fla. 5th DCA 1992).

44. Expert testimony concerning the applicable standard of

conduct in the local community and Respondent ' s alleged

deviation from that standard was less than clear and convincing.

Pur vis v. Department of Professional Regulation , 461 So. 2d 134

(Fla. 1st DCA 1984). The evidence elicited by Respondent was of

sufficient weight to prevent the trier of fact from forming a

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

the allegations that Respondent failed to exercise " due care " or

" due regard " in the drawings for the Barnes residence.

45. Respondent used his professional opinion to design the

plans. Respondent relied upon a building permit issued by the

local authority charged with interpreting the applicable

building code. Respondent is not professionally negligent in

such circumstances. See Seibert v. Bayport Beach and Tennis

Club Association, Inc. , 573 So. 2d 889, 892 (Fla. 2d DCA 1990).

46. The remaining charge is that Respondent committed

misconduct in violation of Subsection 471.033(1)(g), Florida

Statutes. The term " misconduct " is not defined by statute. The

applicable rule defines misconduct to mean the violation of any

state law directly regulating the pract ice of engineering. Fla.

Admin. Code R. 61G15 - 19.001(6)(n). Petitioner charges that

Respondent violated Subsection 553.791(3), Florida Statutes, by

allegedly designing the Coker and Yonkers projects and providing

building code inspection services for eac h project.

47. Building code inspection services are statutorily

defined to mean any of the services described in Subsection s

468.603(6) and 468.603 (7), Florida Statutes, that involve:

[T]he review of building plans to determine

compliance with applicabl e codes and those

inspections required by law of each phase of

construction for which permitting by a local

enforcement agency is required to determine

compliance with applicable codes. (emphasis

supplied)

§ 553.791(1)(c), Fla. Stat.

48. A determina tion of whether the services Respondent

provided for the Coker and Yonkers projects satisfied the

statutory definition of building code inspection services must

be strictly construed. Any ambiguity in the statute must be

construed in favor of Respondent. State ex. rel. Jordan v.

Pattishall , 99 Fla. 296, 126 So. 147 (1930); Ocampo v.

Department of Health , 806 So. 2d 633 (1st DCA Fla. 2002); Equity

Corp. Holdings, Inc. v. Department of Banking and Finance,

Division of Finance , 772 So. 2d 588, 590 (Fla. 1st DCA 2000);

Jonas v. Florida Department of Business and Professional

Regulation , 746 So. 2d 1261 (Fla. 3d DCA 2000); Loeffler v.

Florida Department of Business and Professional Regulation , 739

So. 2d 150 (Fla. 1st DCA 1999); Haggerty v. Florida Department

o f Business and Professional Regulation , 716 So. 2d 873 (Fla.

1st DCA 1998); Elmariah v. Department of Professional

Regulation, Board of Medicine , 574 So. 2d 164 (Fla. 1st DCA

1990); Rush v. Department of Professional Regulation , 448 So. 2d

26 (Fla. 1st DCA 1984); Ferdego Discount Center v. Department of

Professional Regulation , 452 So. 2d 1063 (Fla. 3d DCA 1984);

Bowling v. Department of Insurance , 394 So. 2d 165 (Fla. 1st DCA

1981); Lester v. Dept. of Professional and Occupational

Regulations , 348 So. 2d 9 23 (Fla. 1st DCA 1977).

49. It is less than clear and convincing that Respondent

provided building code inspection services for the Coker and

Yonkers projects. The weight of the evidence shows that

Department employees performed the required inspectio ns.

50. Petitioner submitted evidence beyond the scope of the

acts alleged in the charging documents. Disciplinary action

cannot be predicated on facts not alleged in the charging

documents. Ghani v. Department of Health , 714 So. 2d 1113 (Fla.

1st D CA 1998); Cotrill v. Department of Insurance , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner enter a final order finding

Respondent not guilty of t he alleged violations.

DONE AND ENTER ED this 2nd day of May, 2006 , in Tallahassee,

Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

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 2nd day of May , 2006 .

ENDNOTE

1/ The first alleged facts occurred on October 29, 2002, infra ,

Finding of Fact 3. References to statutes and rules are to

those in effect immediately prior to October 29, 2002.

COPIES FURNISHED :

Douglas D. Sunshine, Esquire

Florida Engineers Management

Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

Dominic C. MacKenzie, Esquire

Holland & Knight, LLP

50 North Laura Street, Suite 3900

Jacksonville, Florida 32202

Paul J. Martin, Executive Director

Board of Professional Engineers

Department of Business and

Prof essional Regulation

2507 Callaway 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this c ase.