05-004274PL Florida Engineers Management Corporation vs. John B. Benson, P.E. Status: Closed Recommended Order on Friday, June 9, 2006.

Summary: Respondent was shown to have violated an order of the Board of Professional Engineers previously entered in a disciplinary proceeding. Recommend a penalty of a four-month license suspension, a fine of $4,000 and the Board`s costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION , )

)

Petitioner , )

)

vs. ) Case No. 05 - 4274PL

)

JOHN B. BENSON, P.E. , )

)

Respondent . )

)

RECOMMENDED O RDER

The final hearing in this case was held on May 9, 2006, in

Tallahassee, Florida, before Bram D. E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Bruce Campbell, Esquire

Flor ida Engineers Management Corp oration

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

For Respondent: James W. Linn, Esquire

Glenn E. Thomas, Esquire

Lewis, Longman & Walker , P.A.

125 South Gadsden Street, Sui te 300

Post Office Box 10788

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent violated an

order of the Board of Professional Engineers (Board) previously

entered in a disciplinary proceeding, and, if so, what

disciplinary action is appropriate.

PRELIMINARY STATEMENT

On November 21, 2005, Petitioner filed an Administrative

Complaint against Respondent, charging him with violating

Subsection 471.033(1)(k), Florida Statutes (2004), 1 by engaging

in the practice of electrical engineering , which was prohibited

by a 2002 order of the Board. Respondent requested a hearing to

contest the factual allegations of the Administrative Complaint ,

and the matter was referred to DOAH to conduct an evidentiary

he aring.

At the hearing, Petitioner presented the testimony of Homer

Ooten, P.E., who was accepted as an expert in electrical

engineering and building inspections. Petitioner ' s Exhibits 1

through 4 were admitted into evidence. Respondent testified on

his o wn behalf. Respondent's Exhibits 1 through 7 were admitted

into evidence. The parties submitted timely Proposed

Recommended Orders that were carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is a licensed professional engineer in

Florida and holds license PE 20638. He has held the license

continuously since 1979.

2. In 2000, Petitioner brought a disciplinary action

against Respondent, styled FEMC v. John B. Benson, III, P.E. ,

Department of Business and Pr ofessional Regulation Case No. BPR -

2000 - 04871, for alleged negligence in preparing a deficient

electrical plan and related misconduct in connection with the

construction of an addition to a church. The case terminated

with the Board's Final Order Approvin g Settlement Stipulation

("2000 Final Order").

3. In the parties' Settlement Stipulation, Respondent

agreed to pay a fine and to be permanently prohibited from

practicing electrical engineering.

4. On September 17, 2004, Respondent signed and sealed, as

an engineer, an Inspection Report by Affidavit for electrical

inspection of the "rough - in" 2 electrical work associated with

construction at 4915 26th S tree t , West, Building A, in

Bradenton, Florida.

5. On September 17, 2004, Respondent signed and sealed, as

an engineer, an Inspection Report by Affidavit for electrical

inspection of the rough - in electrical work associated with

construction at 4915 26th St reet, West, Building J .

6. On December 1, 2004, Respondent signed and sealed, as

an engineer, an Inspec tion Report by Affidavit for final

electrical inspection of the electrical work associated with

construction at 4915 26th St reet, West, Building A.

7. On December 3, 2004, Respondent signed and sealed, as

an engineer, an Inspection Report by Affidavit for final

electrical inspection of the electrical work associated with

construction at 13411 Blythfield Terrace, Bradenton, Florida.

8. No allegation was made, or evidence introduced to show,

that the inspection reports referred to in paragraphs 4

through 7 contained errors or that the inspections were

deficient.

9. Mr. Ooten, an expert in electrical engineering and

building inspections , testified that building officials usually

require an electrical plan to be included in building plans, but

the electrical plan does not have to be signed and sealed by an

electrical engineer.

10. On December 17, 2004, the Board received a complaint

from the chief building official for Manatee County, regarding

Respondent's signing and sealing electrical inspections in 2004 ,

contrary to the Board's 2000 Final Order prohibiting Respondent

from practicing electrical engineering. This complaint and the

Board's subsequent investigation led to the Administrative

Complaint which is the subject of this case.

11. Respondent's defen se to the charges in the

Administrative Complaint is that he understood the Board's 2000

Final Order to prohibit him from designing an electrical plan.

He did not think he was prohibited from signing and sealing

electrical inspections, or from signing and sealing construction

plans that included electrical components.

12. On March 25, 2005, the Board received another

complaint from the chief building official for Manatee County,

who claimed that Respondent signed and sealed an electrical plan

for a buildi ng for the Lemur Conservation Foundation. In

response to this second complaint, Respondent informed the Board

that he had placed a disclaimer statement on the building plans

that "These plans have been reviewed for adequacy of structural

components and sy stems only in compliance with FBC 01 Section

1606 130 MPH." Respondent placed this statement only on the

first page of the building plans.

13. As a consequence of this second complaint and

investigation, Respondent was issued a "Letter of Guidance." No

Letter of Guidance, clearly identified as such, is contained in

the record. Respondent's Exhibit 1 includes a "Closing Order"

of Petitioner, dated August 8, 2005, which may constitute the

Letter of Guidance. It contains a statement directed to

Respondent :

The panel cautions the Subject that when he

signs any page of plans he is responsible

for all engineering depicted on the page

unless the limitation of his analysis and

approval appears clearly on the same page.

14. Respondent asserts that, until the L etter of Guidance

was issued, he did not understand that his inspection of

electrical components and systems was the practice of electrical

engineering. The Letter of Guidance, however, did not address

the issue of the propriety of Respondent's four elect rical

inspections. The Letter of Guidance was a response to the

second complaint about Respondent's signing and sealing an

electrical plan, and his defense that he used a disclaimer

statement to indicate that his signature and seal was not a

representatio n about the electrical plan. The essence of the

Board's "guidance" to Respondent was to make his disclaimer

regarding the electrical components more explicit.

CONCLUSIONS OF LAW

15. DOAH has jurisdiction of the parties to and the

subject matter of these proceedings pursuant to

Subsections 120.569(1), 120.57(1), and 455.225(5), Florida

Statutes (2005).

16. Subsection 471.033(1)(k), Florida Statutes, empowers

the Board to take disciplinary action against an engineer for

violating any order of the Board pr eviously entered in a

disciplinary proceeding.

17. The Board is empowered to revoke, suspend, or

otherwise discipline the license of a professional engineer for

a violation of Subsection 471.033(1)(k), Florida Statutes.

Pursuant to Subsection 455.227(3)( a), Florida Statutes, the

Board may also assess its costs related to the investigation and

prosecution of a case, excluding costs associated with an

attorney's time.

18. Because the remedies sought by Petitioner are penal in

nature, it must prove the alle gations of its Administrative

Complaint by clear and convincing evidence. Department of

Banking and Finance v. Osborne Stern and Company , 670 So. 2d 932

(Fla. 1996). The clear and convincing evidence standard :

[R] equires t hat the evidence must be found

t o 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

hesitancy, as to the truth of the

allegations sought to be established.

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

19. Subsection 471.005(7), Florida Statutes, defi nes

"engineering" in pertinent part as :

[A] ny 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

scienc es to such services or creative work

as . . . the inspection of construction for

the purpose of determining in general if the

work is proceeding in compliance wi th

drawings and specifications.

2 0 . There is no definition in Chapter 471, Florida

Statutes, for "electrical engineering." The parties have not

suggested a meaning that would differ from its obvious meaning --

engineering (as defined in Subsection 471.005(7), Florida

Statutes) that involves electrical components and systems.

21 . Considering the st atutory definition of "engineering,"

which expressly includes "inspection of construction,"

Respondent's signing and sealing of four inspections of

electrical work was the practice of electrical engineering.

22 . A licensee is charged with knowing the prac tice act

that governs his or her license. See Wallen v. Florida

Department of Professional Regulation , 568 So. 2d 975 (Fla. 3d

DCA 1990).

23 . Petitioner met its burden to prove by clear and

convincing evidence that Respondent violated the prohibition

aga inst practicing electrical engineering contained in the 2000

Final Order.

2 4 . Respondent's testimony that he did not think his

inspection of electrical work was a violation of the prohibition

against practicing electrical engineering is credible.

Neverth eless, he is accountable for his mistake.

2 5 . Pursuant to Florida Administrative Code Rule 61G15 -

19.004(2)(d), the disciplinary guideline for a violation of a

final order of the Board ranges from a minimum penalty of

license suspension and a fine of $1,00 0 to a maximum penalty of

license revocation and a fine of $5,000.

2 6 . Florida Administrative Code Rules 61G15 - 19.004(3)(a)

and (b) set forth a number of aggravating and mitigating

factors, respectively, that entitle the Board to deviate from

the discipli nary guidelines. The aggravating factors are:

1. History of previous violations of the

practice act and the rules promulgated

thereto.

2. In the case of negligence, of the

magnitude and scope of the project and

damage inflicted upon the general public by

the licensee's misfeasance.

3. Evidence of violation of professional

practice acts in other jurisdictions wherein

the licensee has been disciplined by the

appropriate regulatory authority.

4. Violation of the provision of the

practice act wherein a letter of guidance as

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

previously been issued to the licensee.

The mitigating factors are:

1. In cases of negligence, the minor nature

of the project in question and lack of

danger to the public health, safety and

welfare resulting from the licensee's

misfeasance.

2. Lack of previous disciplinary history in

this or any other jurisdiction wherein the

licensee practices his profession.

3. Restitution of any damages suffered by

the licensee's client.

4. The lice nsee's professional standing

among his peers including continuing

education.

5. Steps taken by the licensee or his firm

to insure the non - occurrence of similar

violations in the future.

2 7 . Petitioner argues that the Board is entitled to

deviate above the maximum penalties because of Respondent's

history of previous violations (represented by the 2000 Final

Order) and the issuance of the Letter of Guidance in 2005. The

2000 Final Order, however, did not find that Respondent violated

the law. Although Respondent paid a fine and agreed to other

disciplinary action, it was pursuant to a settlement agreement

wherein no admission or determination of a violation of

Chapter 471 , Florida Statutes, was made. No matter how certain

Petitioner might be that a vi olation occurred, the 2000 Final

Order did not establish its occurrence.

2 8 . With regard to the aggravating factor of the issuance

of the Letter of Guidance, that letter was issued for events

that occurred after the violations of the 2000 Final Order that

are the subject of this case. Furthermore, like the 2000 Final

Order, the Letter of Guidance did not establish that Respondent

violated Chapter 471, Florida Statutes. Finally, even if the

Letter of Guidance were a legitimate aggravating factor, it is

of fset by a mitigating factor; Respondent's use of the

disclaimer statement was a step taken to e nsure the non -

occurrence of future, prohibited practices of electrical

engineering.

29 . The parties did not present evidence demonstrating the

applicability of the other aggravating or mitigating factors

cited above.

30 . Petitioner urges a penalty be imposed against

Respondent of license revocation and a fine of $15,000.

Considering all the circumstances, that penalty would be

unreasonably harsh. License sus pension for one month and a fine

of $1,000, for each of the four electrical inspections made in

violation of the 2000 Final Order, would be fair and reasonable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDE D that the Board enter a Final Order finding that

Respondent violated Subsection 471.031(1)(k), Florida Statutes,

for violating an order of the Board previously entered in a

disciplinary proceeding, and imposing a penalty of license

suspension for a period of four months and a fine of $4,000,

plus the costs of these proceedings, as determined by the Board.

DONE AND ENTERED this 9th day of June , 2006 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrati ve Hearings

this 9th day of June , 2006 .

ENDNOTES

1/ References to the Florida Statutes are to the 2004

codification unless otherwise indicated.

2/ The "rough - in" inspection refers to the inspection made

before the walls are installed, when the electr ical components

that will be inside the walls are still visible.

COPIES FURNISHED :

James W. Linn, Esquire

Glenn E. Thomas, Esquire

Lewis, Longman & Walker, P.A.

125 South Gadsden Street, Suite 300

Post Office Box 10788

Tallahassee, Florida 32302

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 North Monroe Street

Talla hassee, 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 Recommended Order should be filed with the agency that

will issue the final order in this case.