05-003340PL Florida Engineers Management Corporation vs. Robert C. Kany, P.E. Status: Closed Recommended Order on Tuesday, March 14, 2006.

Summary: Petitioner alleged Respondent to be negligent in the practice of engineering, aiding a non-licensed person in the practice of engineering, and failing to exercise "responsible control." Negligence was proved; the remaining allegations were not proved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3340PL

)

ROBERT C. KANY, P.E., )

)

Respondent. )

)

RECOMMENDED O RDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on January 13, 2006, in Orlando, Florida.

APPEARANCES

For Petitioner: Bruc e Campbell, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

For Respondent: Daniel M. Greene, Esquire

Kirwin & Morris

338 West Morse Boulevard, Suite 150

Winter Park, Florida 32789

STATEMENT OF THE ISSUE S

Whether Respondent, Robert C. Kany, P.E., committed the

acts or omissions alleged in the Administrative Com plaint ;

whether those acts or omissions constitute the violations

alleged; and, if so, what penalty should be imposed (as

submitted in the parties' Joint Pre - hearing Submission) .

PRELIMINARY STATEMENT

On March 29, 2005, Petitioner, Florida Engineers Manage ment

Corporation, f il ed an A dministrative C omplaint alleging that

Respondent, Robert C. Kany, P.E., had violated Florida law and

had been negligent in the practice of engineering. In essence

the A dministrative C omplaint alleged that Respondent had signed

plans drafted by a unlicensed person over whom Respondent was

"not in responsible charge," "had aided and assisted an

unlicensed person to practice engineering," and that the

particular plans did "not comply with acceptable standards of

engineering princip les , " and , therefore, Respondent was

negligent in the practice of engineering.

On September 1, 2005, Respondent's attorney requested an

administrative hearing. Petitioner forwarded the case to the

Division of Administrative Hearings on September 14, 2005. On

that same day , an Initial Order was sent to both parties. Based

on the parties' response to the Initial Order, on September 29,

2005, the case was scheduled for final hearing in Orlando,

Florida , on November 8, 2005.

On October 27, 2005, in response to a Joint Motion f or

Continuance, the final hearing was cancelled. In response to a

request of the parties, the case was rescheduled for January 13,

2006.

The case was presented as rescheduled on January 13, 2006.

Petitioner presented four witnesses: N ereida Laureano ;

Alejandro Perez ; Homer Ooten, who was accepted as an expert

witness in electrical engineering ; and Syed Mehdi Ashraf, who

was accepted as an expert witness in the field of structural

engineering. Three joint exhibits w ere submitted by the parties

and marked Joint Exhibits 1 through 3. Petitioner presented two

additional exhibits , which were admitted into evidence and

marked Petitioner's Exhibits 1 and 2.

Respondent presented four witnesses: Thomas Love, who was

accepted as an expert witn ess in mechanical, electrical , and

plumbing engineering ; Frank Griffo ; Darius Adams ; and Frank

Kany. Messrs. Griffo and Adams were accepted as expert

witnesses in structural engineering and general engineering

practice in the community, respectively.

The Transcript of Proceedings was filed with the Clerk of

the Division of Administrative Hearings, on January 27, 2006.

The parties had agreed to 25 days from filing to submit proposed

recommended orders. Both parties timely filed Proposed

Recommended Orders .

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of fact are made:

1. At all times material to the allegations in the

Administrative Complaint, Respondent was a licensed Professional

Eng ineer with license PE 16739.

2. On or about February 12, 2004, Respondent signed and

sealed two pages of plans for a project described as

"Renovations to Existing Facilities 8245 Curryford Road,

Orlando."

3. Respondent did not have a contract with or any

communication with the Curryford Road owner.

4. Between April 26, 2002, and on or about July 8, 2003,

Respondent signed and sealed five pages of plans for a project

identified a "2008 Corena Drive."

5. Respondent did not have a contract with or any

comm unication with the Corena Drive owner.

6. Petitioner is the State of Florida agent that provides

investigative and prosecutorial services for the Florida Board

of Professional Engineers. The Florida Board of Professional

Engineers regulates the practice of engineering pursuant to

Chapter s 455 and 471, Florida Statutes (200 1 ) .

7. Joint Exhibit 1, "Renovations to Existing Facilities

8245 Curryford Road, Orlando," and Joint Exhibit 2, "2008 Corena

Drive ," contain deficiencies regarding mechanical, electrica l ,

and plumbing design. Som e deficiencies can be cured by the

plans examiner 's refusing to approve the plans and requesting

clarifying information re garding the noted deficiency.

8. In Florida, an electrical contractor can assume

responsibility for elect rical design requirements for

residential properties th at require less than 600 amps systems.

However, when an engineer seals the plans, the engineer assumes

that responsibility.

9. The initial step in plans approval in Orange County,

Florida, is submiss ion of the plans to the Orange County Zoning

Department. Both sets of plans in question were initially

reviewed by the zoning department. The "Curryford" plans were

submitted to the Orange County Building Department for review

and were not approved. Whi le the "Corena" plans were retained

by Orange County, there is no evidence that these plans were

submitted for building department review.

10. It is not atypical for plans to be rejected by the

Orange County Building Department and returned to the enginee r

for additions or corrections.

11. While one small deficiency exists to the structural

design of Joint Exhibit 1, "Renovations to Existing Facilities

8245 Curryford Road, Orlando ," there was no threat to public

safety.

12. There are myriad structural en gineering deficiencies

in Joint Exhibit 2, "2008 Corena Drive," which are the sealed

plans for the residence at that address. The deficiencies may

be a result of the fact that the plans were incomplete due to

the owners ' failure to decide on a cathedral o r closed ceiling.

If the plans were preliminary, Respondent should not have sealed

them.

13. The plans depicted in Joint Exhibit 2, "2008 Corena

Drive," do not meet minimum engineering standards; the engineer

of record, Respondent, was negligent in sealin g these plans.

14. It is acceptable practice in the engineering community

for an engineer to work with a designer who drafts design

documents and is independently employed. It is also acceptable

practice in the engineering community for an engineer worki ng

with a designing draftsman not to visit a particular project

site if sufficient detail of the project is related to the

engineer by the draftsman.

15. It is acceptable practice in the engineering community

for a draftsman to design complete drawings an d then present the

drawings to an engineer for engineering review and approval as

long as the draftsman is known to the engineer and the engineer

is aware of the draftsman's skill and expertise.

16. Respondent has practiced his profession for 65 years,

th e last 25 in Florida. He has known Robert Thomas, the

individual who drafted both sets of plans in question, for seven

or eight years. Respondent considers Mr. Thomas to be a "darn

good" draftsman with considerable knowledge of the building

industry. Wh en Mr. Thomas brings plans to Respondent for

review, they discuss the project and the plans ; Respondent then

makes appropriate changes to assure that the plans comply with

or exceed code. This process meets the "responsible charge"

standard.

CONCLUSIONS O F LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1) , Fla. Stat . (200 5 ).

18. Subsection 471.038(3) , Florida Statutes (200 1 ),

authorizes Petitioner to provide admini strative, investigative,

and prosecutorial services to the Board of Professional

Engineers.

19. Petitioner must prove the allegations of its

Administrative Complaint by clear and convincing evidence.

Department of Banking and Finance v. Osborne Stern and Company,

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

2d 292 (Fla. 1987).

20. The "clear and convincing" standard requires:

[T]hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesi tancy, as to the

truth of the allegations sought to be

established.

In Re: Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

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

21. Statutes that authorize the imposition of penal

sanctions must be strictly construed, and any ambiguity must be

construed in favor of Respondent. Elmariah v. Department of

Business and Professional Regulation , 574 So. 2d 164, 165 (Fla.

1st DCA 1990). The Florida lenity statute, Subsection

775.021(1) , Florida Statutes (200 1 ), provides that: "offenses"

defined by any Florida Statutes must be construed most favorably

to the offender if the language is susceptible to different

meanings. Pasquale v. Florida Elections Commission , 759 So. 2d

23, 26 (Fla. 4th DCA 2000).

22. Subsection 471.033(1)(g), Florida Statutes (200 1 ) ,

reads as follows:

(1) The following acts constitute grounds

for which the disciplinary actions in

subsection (3) may be taken:

* * *

(g) Engaging in fraud or deceit,

negligence, incompeten ce, or misconduct, in

the practic e of engineering.

23 . Florida Administrative Code Rule 61G15 - 19.001(4) reads

as follows:

(4) A professional engineer shall not be

negligent in the practice of engineering.

The term negligence set forth in Section

471 .033(1)(g), F.S., is herein defined as

the failure by a professional engineer to

utilize due care in performing in an

engineering capacity or failing to have due

regard for acceptable standards of

engineering principles. Professional

engineers shall appro ve and seal only those

documents that conform to acceptable

engineering standards and safeguard the

life, health, property and welfare of the

public. Failure to comply with the

procedures set forth in the Responsibility

Rules as adopted by the Board of

Pr ofessional Engineers shall be considered

as non - compliance with this section unless

the deviation or departures therefrom are

justified by the specific circumstances of

the project in question and the sound

professional judgment of the professional

enginee r.

2 4 . Subsection 455.227(1)(j), Florida Statutes (200 1 ) ,

reads as follows:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(j) Aiding, assisting, procurin g,

employing, or advising any unlicensed person

or entity to practice a profession contrary

to this chapter, the chapter regulating the

profession, or the rules of the department

or the board.

2 5 . Subsection 471.033(1)(j), Florida Statutes (200 1 ),

reads as follows:

(1) The following acts constitute grounds

for which the disciplinary actions in

subsection (3) may be taken:

* * *

( j) Affixing or permitting to be affixed

his or her seal, name, or digital signature

to any final drawings, spe cifications,

plans, reports, or documents that were not

prepared by him or her or under his or her

responsible supervision, direction, or

control.

2 6 . Florida Administrative Code Rule 61G15 - 18.011(1) reads

as follows:

As used in Chapter 471, F.S., and in these

rules where the context will permit the

following terms have the following meanings:

(1) “Responsible Charge” shall mean that

degree of control an engineer is required to

maintain over engineering decisions made

personally or by others over whic h the

engineer exercises supervisory direction and

control authority. The engineer in

responsible charge is the Engineer of Record

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

F.A.C.

(a) The degree of control necessary for

the Engineer of Record shall be such that

the engineer:

1. Personally makes engineering

decisions or reviews and approves proposed

decisions prior to their implementation,

including the consideration of alternatives,

whenever engineering decisions which could

affect the health, saf ety and welfare of the

public are made. In making said engineering

decisions, the engineer shall be physically

present or, if not physically present, be

available in a reasonable period of time,

through the use of electronic communication

devices, such as electronic mail

videoconferencing, teleconferencing,

computer networking, or via facsimile

transmission.

2. Judges the validity and applicability

of recommendations prior to their

incorporation into the work, including the

qualifications of those mak ing the

recommendations.

2 7 . Petitioner has proved clearly and convincingly Count

Six of the Administrative Complaint. By sealing the plans

identified as Joint Exhibit 2, "2008 Corena Drive, " plans which

do not meet minimum engineering standards, Respon dent was

negligent.

2 8 . Petitioner has failed to prove by clear and convincing

evidence the remaining counts of the Administrative Complaint.

The evidence presented indicates that Respondent exercised

“responsible charge” over Robert Thomas; although Mr. Thomas

actually met with his clients and drafted the plans, Respondent

had ultimate control over engineering decisions after discussion

of the particular project and consideration of plan

alternatives. Respondent was familiar with Mr. Thomas'

qualificati ons.

2 9 . There is no evidence that supports the allegation that

Respondent aided or assisted Mr. Thomas in the unlicensed

practice of engineering.

30 . The re is little evidence that the plans identified as

Joint Exhibit 1, "Renovations to Existing Facilit ies

8245 Curryford Road, Orlando," did not co nform to acceptable

engineering standards and safeguard the life, health, property

and welfare of the public. Admittedly, the plans were flawed

and contained errors and omissions, not an uncommon occurrence,

b ut that fact alone does not evidence negligence as defined in

paragraph 22 , supra .

31 . The disciplinary guidelines, found in Florida

Administrative Code Rule 61G15 - 19.004(2)(m), allow the

imposition of discipline for negligence in the practice of

engineer ing to range from a minimum of a reprimand, two year s'

probation , and a $1 , 000 fine to a maximum of a reprimand, $5 ,000

fine, five year s' suspension , and ten year s' probation.

3 2. No aggravating circumstances have been presented,

although the undersigned is aware that aggravation and

mitigation are to be considered by the Board of Professional

Engineers. The undersigned has considered Petitioner's demeanor

at the final hearing and his 65 years of professional service in

mitigation.

RECOMMENDATION

Based o n the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that the Board of Professional Engineers

reprimand Respondent, Robert C. Kany, P.E., for his negligence

in sealing incomplete plans.

DONE AND ENTERED this 1 4 th day of March , 2006 , i n

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 967 5

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 4 th day of March , 2006 .

COPIES FURNISHED :

Daniel M. Greene, Esquire

Kirwin & Morris

338 West Morse Boulevard, Suite 150

Winter Park, Florida 32789

Bruce Campbell, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 No rth Monroe Street

Tallahassee, Florida 32399 - 2202

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

Tallahassee, Florida 32303 - 5267

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 Recom mended Order should be filed with the agency that

will issue the final order in this case.