05-004338 Florida Engineers Management Corporation vs. Alan D. Stokes Status: Closed Recommended Order on Wednesday, March 29, 2006.

Summary: Providing testimony as an expert in the area of engineering in the Tennessee litigation is not the practice of engineering in Florida. Recommend that the Administrative Complaint be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4338

)

ALAN D. STOKES, )

)

Respondent. )

)

RECOMMENDED ORDER

A dministrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) held a formal hearing in this cause

in Tallahassee, Florida, on January 27, 2006.

APPEARANCES

For Petitioner: Bruce A. Campbell, Esquire

Florida Engineers Manageme nt Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

For Respondent: William H. Hollimon, Esquire

Moyle , Flanigan, Katz , Raymond , White

and Krasker , P.A.

The Perkins House

118 North Gadsden Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issues for determination are whether Respondent, by

holding himself out as an expert witness and testifying as an

expert witness, engaged in the unli censed practice of engineering.

P RELIMINARY STATEMENT

On or about October 24, 2005, the Florida Engineers

Management Corporation (Petitioner), filed an Administrative

Complaint charging Respondent with the unlicensed practice of

engineering associated wit h Respondent ’s holding himself out as an

expert witness and providing expert witness testimony in the case

of Brown v. Daimler Chrysler Corp. , Case No. 3:03 - 0676, United

States District Court, Middle District of Tennessee (the

“Tennessee Case”).

Petitio ner timely requested a formal administrative hearing

with regard to the two charges in the Administrative Complaint.

Subsequently, on November 28, 2005, the case was forwarded to

DOAH for formal proceedings.

During the final hearing, Petitioner present ed three exhibits

and no witnesses. Respondent presented one expert witness and two

exhibits. The transcript of the proceedings was filed with DOAH

on January 24, 2006.

References to Florida Statutes denote the 2005 edition

unless otherwise noted .

FIN DINGS OF FACT

1. Respondent is a 1993 graduate of the University of

Florida with a Bachelor of Science in electrical and computer

engineering and is pursuing a Ph.D . in safety engineering from

Kennedy Western University. Respondent is not a licensed

professional engineer in Florida.

2. Respondent is a member of three professional

organizations: 1) Institute of Electrical and Electronic

Engineers (IEEE); 2) Society of Automotive Engineers (SAE); and

3) Accident Reconstruction Network (ARC). IEEE and SAE require

a degree in engineering for membership, but do not require

professional licensure.

3. Generally, professional organizations for engineers

require an engineering degree from an accredited engineering

program, but do not require licensure as a condition of

membership. Thus, membership in a professional organization

such as IEEE does not tend to indicate that a member holds a

license to practice engineering.

4. No competent evidence was presented that Respondent

uses engin eering designations, titles and devices tending to

indicate that Respondent holds an active license as an engineer

in Florida.

5. Respondent has gained experience in the areas of

mechanical and electrical engineering through education, and

training. He holds himself out as experienced and qualified to

provide expert witness services in many fields related to

engineering basic principles. Respondent gained much of his

engineering experience in positions that are exempt from the

licensure requirement .

6. Respondent does not hold himself out as a professional,

or licensed engineer.

7. Graduates of accredited engineering programs are

commonly referred to as “engineers” by universities and

potential employers.

8. Respondent purport s to possess expertise as a forensic

consultant, accident reconstructionist, and forensic computer

expert. Respondent does not hold himself out as an “engineer”

or a “licensed” or “professional” engineer.

9. Attorney Debra Wall (“Wall”) retained Re spondent to

provide expert witness services in the Tennessee Case. In

providing such services, Respondent never held himself out as a

licensed engineer or as a professional engineer. In seeking to

obtain an expert witness, Wall did not initially put any weight

on professional licensure as a requirement to provide expert

testimony.

10. Respondent generated two written reports and was

deposed regarding these reports in the Tennessee Case.

11. Respondent’s expert witness testimony consisted on ly

of giving opinions based on observation, not on engineering

theory or testing.

12. Respondent performed no calculations in support of his

opinions in the Tennessee Case.

13. Respondent’s opinions were directed to a discrete

litigation even t – the Tennessee Case - and do not implicate the

health, safety, or welfare of the public in general, or to the

citizens of Florida in particular.

14. Engineering analysis consists of complex scientific

analysis of collected data or material. I n a case like the

Tennessee Case, engineering analysis would consist of the

performance of scientific discovery based upon mathematics,

physics, or engineering and/or a statistical evaluation of

seatbelts for the make and model of automobile in question to

determine seatbelt - related failure modes and rates.

15. Respondent’s written reports in the Tennessee Case do

not contain engineering analysis; rather, they are based only

upon observation and opinion.

16. Respondent’s opinions in the Tennes see Case do not

constitute engineering analysis.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

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

18. Petitioner i s a not - for - profit agency created pursuant

to Section 471.038, Florida Statutes, responsible for policing

the unlicensed practice of engineering in the State of Florida.

19. The practice of engineering is regulated in Florida by

Chapter 471, Florida Statutes. The express purpose underlying

the regulation of the practice of engineering is to protect the

public health and safety. See § 471.001, Fla. Stat.

20. The State of Florida does not regulate the practice of

engineering in Tennessee. The State of Tennessee has adopted

its own regulatory scheme with respect to engineering licensure.

See § 62 - 2 - 101 et seq . , Tennessee Code.

21. The unlicensed practice of engineering in Florida is a

misdemeanor ( see Section 471.031(2), Fl orida Stat ute s ), and also

is subject to an administrative fine of up to $5,000 per count.

( S ee § 471.033(3)(c), Fla. Stat.)

22. Petitioner has charged Respondent with two counts of

violation of Section 471.031(1)(a), which provides that “[a]

person may not: Pr actice engineering unless the person is

licensed or exempt from licensure under this chapter.”

23. The term "engineer" is defined in Subsection

471.005(5), Florida Statutes, which provides the following:

"Engineer" includes the term "professional

en gineer" and “licensed engineer” and means

a person who is licensed to engage in the

practice of engineering under this chapter.

24. The term "engineering" is defined in Subsection

471.005(7), Florida Statutes, which provides the following:

"Enginee ring" 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, eng ineering

surveys, and the inspection of construction

for the purpose of determining in general if

the work is proceeding in compliance with

the drawings and specifications, any of

which embraces such services or work, either

public or private, in connectio n 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 thermal

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

engineering; who, by verbal claim, sign,

advertisemen t, letterhead, or card, or in

any other way 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

engineerin g service or work or any other

service designated by the practitioner which

is recognized as engineering shall be

construed to practice or offer to practice

engineering within the meaning and intent of

this chapter.

25. The definition of “engineeri ng” in S ection 471.005(7)

includes the term “engineer , ” which must be interpreted

consistent with the definition of “engineer” provided in S ection

471.005(5). Applying this construction, “engineering” includes

“[a] person who practices any branch of engin eering; who, by

verbal claim sign, advertisement, letterhead, or card, or in any

other way through the use of some other title, implies that he

or she is a[] [professional engineer or licensed engineer] or

that he or she is licensed under this chapter.” N o competent

evidence was presented that Respondent “practices any branch of

engineering” or that Respondent implies that he is a

professional or licensed engineer.

26. The term “practice engineering” is not specifically

defined in Chapter 471. Pers ons who are not duly licensed

engineers are prohibited from practicing engineering in Florida.

See § § 471.003(1) and 471.031(1)(a), Fla. Stat.

27. The definition of “engineering” does not by its terms

include the giving of expert testimony at a t rial or judicial

proceedings, or the serving as an engineering expert to a

litigant or to an interested party in anticipation of

litigation. Further, Chapter 471 does not otherwise contain any

requirement that expert testimony be provided only by licensed

engineers. In contrast, Florida’s legislature has expressly

provided in S ection 766.102(5), Florida Statutes (medical

negligence litigation) , that expert witness testimony may only

be provided by a “licensed health care provider.”

28. Although th e issue has not been directly addressed in

Florida, courts in other states have determined that providing

expert witness testimony does not constitute the unlicensed

practice of engineering. See Owens v. Payless Cashways, Inc. ,

670 A. 2d 1240, 1243 - 44 (R. I. 1996); Iowa State Bd. Of

Engineering v. Olson , 421 N.W. 2d 523, 525 (Iowa 1981); Lance v.

Luzerne County Mfrs. Ass’n , 77 A. 2d 386, 388 (Pa. 1951); State

v. Willian , 423 N.E. 2d 668, 671 (Ind. 1981); Wright v. Las

Vegas Hacienda, Inc. , 720 P.2d 696, 697 (Nev. 1986).

29. The stated purpose of Chapter 471 is pragmatic – to

protect the “public health and safety.” This stated purpose

establishes the parameters of what constitutes the practice of

engineering, with activities that serve this overridin g purpose

falling inside the parameters, and activities which do not ,

falling outside them. Because Respondent, through provision of

expert witness services, does not provide services having a

direct effect on public health and safety, these services fall

outside the definition of engineering in Chapter 471 and do not

constitute the unlicensed practice of engineering. Further,

since it is axiomatic that because providing expert witness

services does not constitute the practice of engineering,

offering to provide such services also cannot constitute the

practice of engineering.

30. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent.

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

31. T he nature of clear and convincing evidence has been

described as follows:

[C]lear and convincing evidence requires

that 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 hesitancy, as to the

truth of the all egations sought to be

established.

Inquiry Concerning Davey, 645 So.2d 398, 404 (Fla. 1994) ,

quoting, with approval, from Slomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983).

32. Petitioner failed to meet its burden of proof.

33. O ffering expert witness services which do not

implicate the health, safety, and welfare of Florida citizens

does not constitute the unlicensed practice of engineering in

Florida.

34. Providing expert witness services in support of

litigation in Tenne ssee cannot constitute the provision of

engineering services in Florida .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED that Petitioner enter a final order dismissing

the Administrative Complaint.

DONE AND ENTERED this 2 9 t h day of March, 2006, in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallah assee, 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 2 9 th day of March, 2006.

COPIES FURNISHED :

Bruce A. Campbell, Esquire

Florid a Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

William H. Hollimon, Esquire

Moyle, Flanigan, Katz, Raymond, White

and Krasker, P.A.

The Perkins House

118 North Gadsden Street

Tallahassee, Florida 32301

J osefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Paul J. Martin, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

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.