11-005348PL Florida Board Of Professional Engineers vs. Robert Wood, P.E. Status: Closed Recommended Order on Tuesday, November 6, 2012.

Summary: Petitioner proved that Respondent was negligent in the practice of engineering.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF PROFESSIONAL ) )

ENGINEERS, )

)

Petitioner, )

vs. ) Case No. 11-5348PL

)

ROBERT WOOD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

April 25, 2012 and June 26, 2012, in Jacksonville, Florida,

before E. Gary Early, a designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John J. Rimes, III, Esquire

Florida Engineers Management Corporation

2639 North Monroe Street, Suite B-112

Tallahassee, Florida 32303

For Respondent: Michael J. McCabe, Esquire

Nicholas Martino, Esquire

McCabe Law Group, P.A.

1400 Prudential Drive, Suite 5

Jacksonville, Florida 32207

and

Philip J. Stoddard, Qualified Representative

North Star Associates, LLC

320 High Tide Drive

St. Augustine, Florida 32080

STATEMENT OF THE ISSUE

Whether Respondent failed to comply with specified

provisions of section 471.033(1)(g), Florida Statutes, and

Florida Administrative Code Rules 61G15-30.001(4), 61G15-

30.002(5), and 61G15-30.003(1), as alleged in the Administrative

Complaint and, if so, the nature of the sanctions to be imposed.

PRELIMINARY STATEMENT

On July 25, 2011, the Florida Board of Professional

Engineers (Board or Petitioner) filed an Administrative

Complaint against Robert Wood, P.E. (Respondent), which alleged

that Respondent prepared and certified plans for aluminum

structures at two locations that failed to meet the standards

imposed by the Florida Building Code (FBC), thus constituting

negligence in the practice of engineering. The Administrative

Complaint was served on July 29, 2011.

On August 23, 2011, Respondent filed a Request for

Administrative Hearing Involving Disputed Issues of Material

Fact (Petition) by which he disputed the facts alleged in the

Administrative Complaint, and requested a formal administrative

hearing. Respondent alleged that the Petition was timely filed,

which Petitioner has not denied.

On October 18, 2011, Petitioner referred the petition to

the Division of Administrative Hearings.

On October 19, 2011, Respondent filed an Amended Answer and

Statement of Affirmative Defenses, in which Respondent raised

four affirmative defenses.

On October 27, 2011, the case was transferred to Judge Lisa

Shearer Nelson, and the final hearing was scheduled for

December 22, 2011.

On December 14, 2011, Respondent filed a Motion to Cancel

and Reschedule Final Hearing, which motion was not opposed. The

Motion was granted, and the December 22, 2011 hearing was

cancelled, and subsequently rescheduled for April 25-27, 2012.

On January 30, 2012, Respondent filed a Motion for Leave to

Amend, along with his Second Amended Answer and Statement of

Affirmative Defenses, in which Respondent raised a fifth

affirmative defense.

On February 27, 2012, Respondent filed another Motion for

Leave to Amend, along with his Third Amended Answer and

Statement of Affirmative Defenses, in which Respondent raised

his sixth and seventh affirmative defenses.

On March 7, 2012, this case was transferred to the

undersigned.

On March 8, 2012, the Motion for Leave to File the Third

Amended Answer and Affirmative Defenses was granted, and the

Motion for Leave to File the Second Amended Answer and Statement

of Affirmative Defenses was denied as moot.

On April 17, 2012, a Prehearing Stipulation was filed in

which the parties agreed that one day would be sufficient for

the final hearing. Based on that representation, the hearing

was rescheduled for April 25, 2012.

From almost the date that the petition was filed with the

Division of Administrative Hearings through and beyond the

commencement of the final hearing, numerous motions were filed

and disposed of by separately issued Orders. Those motions, and

their disposition, may be determined by reference to the docket

of this case.

The hearing was held on April 25, 2012, as scheduled. The

hearing was not concluded on that date. The remainder of the

hearing was rescheduled for June 26, 2012, and was concluded as

noticed.

At the final hearing, Petitioner presented the testimony of

Joseph Berryman, a professional engineer, who was accepted as an

expert in structural engineering. Petitioner’s Exhibits 1 and

3-8 were received into evidence.

Respondent presented the testimony of Joe Martin, a

professional engineer, who was accepted as an expert in

structural engineering. Respondent’s Exhibits 15 through 17

were received into evidence.

A four-volume Transcript of the proceedings was filed. By

agreement of the parties, the length of the proposed recommended

orders was set at a maximum of 60 pages, with a filing date of

August 1, 2012. Pursuant to motion, the filing date was extended

to August 15, 2012. Both parties timely filed Proposed

Recommended Orders which have been duly considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, the Florida Board of Professional

Engineers, regulates the practice of engineering pursuant to

chapters 455 and 471, Florida Statutes. Petitioner is a board

within the Department of Business and Professional Regulation

(Department), created pursuant to section 20.165, Florida

Statutes.

2. The Florida Engineers Management Corporation (FEMC) is

charged with providing administrative, investigative, and

prosecutorial services to the Florida Board of Professional

Engineers pursuant to subsection 471.038(4), Florida Statutes.

3. At all times material to the allegations in the

Administrative Complaint, Respondent was a licensed professional

engineer, holding License No. PE 31542.

4. Engineering involves analysis and design. Analysis is

the process of applying load to a structure and using

engineering principles to determine the resulting forces or

stresses in the elements of that structure. In design, an

engineer applies the forces or stresses to the materials and

elements used in the structure to determine whether the material

and connections are capable of withstanding the load.

5. The intent of an engineer is determined by his or her

drawings. It is those drawings that establish what the

contractor has to build in the field.

6. Two engineers can review a set of engineering drawings,

make different assumptions, arrive at different conclusions, and

have both conclusions meet engineering standards.

7. It is well established that different engineers make

different assumptions about connectivity of the members of a

structure that materially affect how the structure will react,

and that engineers do not design structures in the same way.

8. This case involves an Administrative Complaint filed by

Petitioner alleging that Respondent prepared and certified plans

for two aluminum structures that failed to meet the standards

imposed by the FBC, thus constituting negligence in the practice

of engineering.

9. In general, engineering principles are not dependant on

the materials used to build a structure. Although aluminum

members used in construction are typically of a thinner gauge

than, for example, steel members, the structural engineering

principles and designs are not unique.

10. In 2009, Petitioner and Respondent settled a

disciplinary action involving Respondent by entry of a

settlement stipulation. Pursuant to the stipulation, which was

incorporated in a Final Order, Respondent agreed to periodically

submit a detailed list of all completed projects that were

signed, sealed, and dated by Respondent. From that list, two

projects were to be selected for review by the FEMC. The Final

Order was not appealed.

11. Respondent submitted the list of projects from which

the FEMC selected two for further review. Those two projects

form the basis for the Administrative Complaint.

12. Respondent was the engineer of record, as that term is

used in Florida Administrative Code Rule 61G15-31, and signed

and sealed the last iteration of the structural engineering

plans for the two projects. Those projects are:

a. The Shank Residence Project, an aluminum-framed,

composite roof patio project; and

b. The Emilion Court Residence Project, an aluminum-

framed screen pool enclosure.

13. The plans were filed with the building department for

St. Johns County, Florida, as part of the application for a

building permit. The plans were reviewed by a county plans

examiner, and a building permit was issued. The issuance of the

building permit demonstrates that St. Johns County found that

the proposed project did not violate the FBC. The Certificate

of Completion for the Shank Residence project was issued on

January 14, 2010. The Certificate of Completion for the Emilion

Court Residence project was issued on March 30, 2010.

14. The purpose of Petitioner’s review was to review what

Respondent did, with the review of documents similar to that

conducted if Respondent were seeking a permit. The purpose was

not to find an alternative analysis.

15. The files were originally assigned to Michael E.

Driscoll, a professional engineer assigned by FEMC to review the

plans and documents submitted for the two projects. On

August 13, 2010, Mr. Driscoll, through his firm, Driscoll

Engineering, issued a Project Review Report for the two

projects. On January 27, 2011, Mr. Driscoll issued a

Supplemental Structural Report.

16. Respondent filed a response and objections to

Mr. Driscoll’s report. In order to avoid Respondent’s

objections from becoming an issue, the FEMC reassigned the

review to Joseph Berryman, a professional engineer who is

frequently retained by the FEMC for such purposes. Mr. Berryman

reviewed and responded to many of Mr. Driscoll’s conclusions,

but provided his own independent analysis as to whether the

plans for the two projects complied with sound engineering

principles.

17. Mr. Berryman prepared a report, dated June 7, 2011, in

which he concluded that Respondent “failed to utilize due care

in performing in an engineering capacity and has failed to have

due regard for acceptable standards of engineering principles”

with respect to the plans for the Shank Residence and Emilion

Court Residence, and as a result was negligent within the

meaning of section 471.033(1)(g) and rule 61G15-19.001(4).

18. Neither Mr. Driscoll nor Mr. Berryman performed a

failure analysis on the Shank or Emilion structures.

19. Mr. Berryman testified that, in his opinion, whether

an engineer’s signed and sealed plans have been approved by a

local building official does not affect an analysis of whether

those plans meet the standards for the practice of engineering

established by the Board of Professional Engineers.

20. The FEMC presented its findings to a Probable Cause

Panel convened by Petitioner to hear cases involving alleged

violations of chapter 471 and the rules promulgated thereunder.

The panel found probable cause to proceed against Respondent.

21. On July 25, 2011, Petitioner issued the Administrative

Complaint that forms the basis for this case. The

Administrative Complaint alleges that Respondent's structural

engineering plans for each project were deficient and failed to

comply with acceptable standards of engineering practice.

Shank Residence Project

22. The Administrative Complaint alleged five separate

counts related to alleged deficiencies in the Shank Residence

Project. The deficiencies were limited to whether required

information was shown on the plans sufficient to allow a

contractor to construct the project, and not to whether elements

of the project were overstressed or otherwise failed to meet

safety standards. The Counts were identified as Counts 6.A.

through 6.E. Count 6.A.

23. Count 6.A. alleged that Respondent failed to indicate

the roof design live load, the enclosure classification, and

internal pressure coefficient.

24. Both Mr. Berryman and Mr. Martin agreed that the FBC

requires that roof design live load, the enclosure

classification, and internal pressure coefficient be shown on

building plans. Both Mr. Berryman and Mr. Martin agreed that

the information was not on the design document for the Shank

project. Thus, Petitioner proved, by clear and convincing

evidence, the elements of Count 6.A. Count 6.B.

25. Count 6.B. alleged that Respondent failed to indicate

the column spacing at the fourth wall, the overall dimension of

the canopy at the fourth wall, the column spacing at the

intermediate roof beam, and the dimensions of the knee brace

elements.

26. As to the column spacing at the fourth wall and the

intermediate roof beam, Mr. Berryman opined that the drawing did

not contain sufficient information regarding those elements of

the plans.

27. Mr. Martin indicated that column spacing was on the

plan front view, but because the columns were in alignment, the

front measurement was sufficient to convey the information as to

column spacing at the fourth wall to the local building

officials and the contractor. However, Mr. Martin admitted that

the drawings contained no information regarding the spacing of

one non-aligned beam at the fourth wall.

28. Although the full side span length from the fourth

wall to the front of the patio structure is provided, the

spacing of the intermediate beam is not. 1/ Thus, Petitioner

proved, by clear and convincing evidence, the elements of Count

6.B. regarding Respondent’s failure to indicate the non-aligned

column spacing at the fourth wall and the spacing of the

intermediate roof beam.

29. As to the dimensions of the canopy at the fourth wall,

while the dimension of the canopy is not written in at the

fourth wall overhead view, it is depicted in the front view.

There was no evidence that a front view measurement is contrary

to FBC requirements. Mr. Martin testified that such a

measurement provided sufficient information to the local

building officials and the contractor, and was therefore

acceptable. Thus, Petitioner failed to prove, by clear and

convincing evidence, the elements of Count 6.B. regarding

Respondent’s failure to indicate the dimensions of the canopy at

the fourth wall.

30. The posts and beams on the Shank project were

buttressed with knee braces. The effect of the knee braces is

to shorten the span length between posts, which reduces the

stresses on the beams. The locations of the braces were

depicted on the drawing. The detail for the 2x3 knee braces was

included in a detail sheet that accompanied the drawings.

31. Petitioner discounted the detail sheet due to a

statement at the bottom of the sheet that “[c]ertification

extends only for the span tables specified for the structural

shapes listed.” Petitioner asserted that language had the

effect of nullifying any reliance on the information contained

in the detail sheet, a position that the undersigned finds to be

unreasonably and unnecessarily restrictive. In addition, such a

construction would also nullify the remaining language along the

border of the detail sheet that “[d]rawing valid with raised

impression engineer seal.”

32. The drawings provided by Respondent, read in

conjunction with the details, establish the dimensions of the

knee brace elements on the drawings. Thus, Petitioner failed to

prove, by clear and convincing evidence, the elements of Count

6.B. regarding Respondent’s failure to indicate the dimensions

of the knee brace elements. Count 6.C.

33. Count 6.C. alleged that Respondent failed to detail

the anchorage of the patio cover posts at the fourth wall and

other locations where the posts do not align with an existing

4x4 railing post, and therefore neglected to provide a complete

load path capable of transferring loads from their point of

origin to the load resisting elements.

34. Mr. Berryman noted that the detail provided regarding

the connection of the posts to an existing rail would not apply

to the fourth wall since there is no rail at that location. The

drawings confirm Mr. Berryman’s testimony as to the existence of

a railing at the fourth wall.

35. Mr. Martin testified that he was “interpreting that to

be a connection to the existing wood rail structure that’s back

here at the fourth wall.” Mr. Martin’s testimony on that point

is not accepted, since the detail clearly depicts the post and

rail structure at the front of the existing deck, and not at the

point at which it connects to the building.

36. Petitioner proved, by clear and convincing evidence,

the elements of Count 6.C. regarding Respondent’s failure to

detail the anchorage of the patio cover posts at the fourth wall

to provide a complete load path capable of transferring loads

from that point to the building.

37. Mr. Berryman also noted locations where the supporting

column did not align with an existing deck post, thereby

providing no direct pathway of the load of the structure to the

foundation element. His testimony finds support in the drawing.

38. Mr. Martin agreed that the FBC requires a direct load

path from the point of application of the load to the ground.

He noted that the detail provided a load path to the posts,

“provided they align.” Where the column and post did not align,

one cannot ascertain the attachment point for the column. The

drawings, including the attached detail sheets, are insufficient

to demonstrate that the columns and the deck posts align to

provide the load-to-ground pathway and, in fact, demonstrate the

opposite.

39. Petitioner proved, by clear and convincing evidence,

the elements of Count 6.C. regarding Respondent’s failure to

provide a complete load path capable of transferring load to the

foundation elements of the structure. Count 6.D.

40. Count 6.D. alleged that Respondent failed to set forth

the material thickness/section and alloy for the 3x3 fluted

posts and beams.

41. Both Mr. Berryman and Mr. Martin agreed that the FBC

requires the material thickness, section, and alloy for

structural members to be set forth in the construction

documents. Both Mr. Berryman and Mr. Martin agreed that the

drawings gave the general dimensions of the posts and beams, but

provided no information as to the gauge, thickness, or alloy of

those structural members. Thus, Petitioner proved, by clear and

convincing evidence, the elements of Count 6.D. regarding

Respondent’s failure to set forth the material thickness and

alloy for the 3x3 fluted posts and beams. Count 6.E.

42. Count 6.E. alleged that Respondent failed to describe

and define required roof panel components.

43. Mr. Berryman indicated that the identification of

“generic” roof panels, without information as to the thickness

of the aluminum cladding, did not provide sufficient information

that the panels met the FBC strength requirements. Mr. Martin

agreed that Respondent did not identify a particular product,

that the drawings provided no other information as to the

thickness of the aluminum sheets that covered the foam core, and

that the information provided regarding the roof panels was

therefore “incomplete.” In the absence of a specific product,

No such specificity as to the thickness of the aluminum skin, or

of the brand name of the product used was provided with the

plans for the Shank project. Thus, Petitioner proved, by clear

and convincing evidence, the elements of Count 6.E. regarding

Respondent’s failure to describe and define required roof panel

components.

44. In general, Mr. Martin’s description of Respondent’s

plans for the Shank project as “sloppy” understated the lack of

information provided. A covered patio structure may not rank

among the most complex or difficult structures for an engineer,

but the simplicity of the project does not excuse a lack of care

and precision that is required to ensure that projects meet

applicable standards. In the case of the Shank Residence

project, Respondent failed to exercise that requisite degree of

care and precision.

Emilion Court Residence Project

45. The Administrative Complaint alleged 11 separate

counts related to alleged deficiencies in the Emilion Court

Project. The Counts were identified as Counts 7.A. through 7.K. Count 7.A.

46. Count 7.A. alleged that Respondent failed to

adequately dimension his permit drawings.

47. Mr. Berryman testified that the deficiency that formed

the basis for Count 7.A. was related to a failure to establish

the “overhang” of the existing structure, inasmuch as the

aluminum pool enclosure was to be attached to that overhang.

48. The drawings submitted indicate that the structure was

to be attached to the host structure at the “super gutter.” The

super gutter is depicted on the structure specific plans, and

the attachment details are provided on that section of the

detail sheet entitled “Typical Super Gutter Attachment Schematic

Plan and Detail.”

49. Mr. Martin indicated that he was able to determine the

dimensions of the structure with the exception of a 2x2-inch

“girt 1” which was akin to a chair rail around the enclosure.

However, the location of “girt 1” was not identified as a basis

for the allegations in Count 7.A.

50. The drawings provided by Respondent, read in

conjunction with the details, establish that Respondent

adequately dimensioned his drawings. Thus, Petitioner failed to

prove, by clear and convincing evidence, the elements of Count

7.A. that Respondent failed to adequately dimension his permit

drawings. Count 7.B.

51. Count 7.B. alleged that Respondent failed to show the

size, section, and location of the framing elements and to

define and detail the connections of the transom wall.

52. Mr. Martin testified that that he had no difficulty in

determining the dimensions of any of the columns or beams that

made up the pool enclosure. He had one question regarding the

dimension of an eave gutter at the point at which the structure

would attach to the host, but it was a question of a few inches

difference.

53. Mr. Berryman’s testimony was limited to the lack of

detail regarding the transom wall, not to other framing elements

for the pool enclosure. Thus, Petitioner failed to prove, by

clear and convincing evidence, the elements of Count 7.B. that

Respondent failed to show the size, section, and location of the

framing elements.

54. Occasionally, a structure like a pool enclosure is

higher than the eave of the host structure. A transom wall is a

short wall that extends from the eave of the host structure to

the framing members to support the spans from the screen pool

enclosure. The evidence in this case demonstrates that

Respondent did not include a transom wall in his design.

55. Petitioner’s expert assumed the existence of a transom

wall because the pool enclosure extended to a height greater

than that of the connection to the house. The side view of the

structure shows a vertical element extending up from the eave of

the house at the nine-foot elevation, but provides no direct

information of any structure associated with that vertical

element.

56. Respondent argued that the transom wall was, in

essence, a structure that was made up by Mr. Driscoll, and that

since it did not appear as part of Respondent’s drawings, it

could not form the basis for a violation. Mr. Martin stated

that the drawings included no transom wall, whereupon he assumed

that the vertical line on the “side view” drawing depicted a

sloping gabled roof or some other unspecified feature of the

host structure that was not clearly depicted. Mr. Martin

further testified that the drawings did not provide the details

for attaching that portion of the structure to the host

structure, regardless of whether it was being attached to a

gabled roof or to a transom wall.

57. Contrary to Respondent’s assertion that there was no

transom wall was his reply to the Project Review Report prepared

by Driscoll Engineering, Inc. In his report, Mr. Driscoll noted

the plans prepared by Respondent:

Do not establish or define the height of the

connection between the screen enclosure roof

and the host roof perimeter (eave). A note

on the Plan View (Exhibit B-1) suggests that

“2X4 SMB Vert.” are present along one fascia

segment, but their height is not shown, nor

does Sheet 2 (B-3) depict an elevation of

this assumed transom wall .” (emphasis

added).

In his response, Respondent, through his authorized agent, did

not deny the existence of a transom wall, and made no suggestion

that the structure tied into the existing host structure, but

rather stated that “the transom wall is not shown; however

[Respondent] assisted in the field with the installation of the

transom wall.” Thus, by virtue of Respondent’s admission, the

evidence is clear and convincing that a transom wall was part of

the required design of the pool enclosure as constructed.

58. During the course of the hearing, a suggestion was

made that Respondent went back to the project site, after-the-

fact, and constructed a completely unnecessary transom wall “in

good faith to try to participate in this process.” That

explanation is neither supported by the record, nor is it a

reasonable or logical explanation for a transom wall having been

constructed and attached to the host structure.

59. Regardless of whether the vertical line depicted the

host structure or a transom wall, the drawings failed to define

and detail the connections of the structure to the host

structure. Thus, Petitioner proved, by clear and convincing

evidence, the elements of Count 7.B. that Respondent failed to

detail the connections of the transom wall, or other such

framing element necessary to connect the pool enclosure to the

Emilion Court residence.

Count 7.C.

60. Count 7.C. alleged that Respondent failed to show the

section and therefore to define and detail the “2x3 Special”

eave rail.

61. A “special” structural component is one that does not

have four 90-degree corners. Rather, one or more of the corners

may be something other than 90 degrees. Both Mr. Berryman and

Mr. Martin agreed that the section of the special eave rail was

not shown in the plans. Mr. Martin acknowledged that the

section of the eave rail should have been on the plans.

Mr. Berryman indicated that by not specifying the section, the

contractor may “interpret the plan, and put whatever he wants.”

Though not a “major issue,” Petitioner proved, by clear and

convincing evidence, the elements of Count 7.C. that Respondent

failed to show the section and therefore to define and detail

the “2x3 Special” eave rail. Count 7.D.

62. Count 7.D. alleged that the 2x6 SMB post element and

the 2x7 SMB beam element of Frame A are overstressed at code-

prescribed design loading, and that the 2x6 SMB post element of

Frame B is overstressed, and that Respondent therefore failed to

proportion the subject framing elements in compliance with FBC

strength standards.

63. In general, the evidence elicited from the experts was

contradictory, including evidence of the standard for measuring

stresses; the assumptions relied upon for determining the manner

in which structural elements were connected, and other elements

of the analysis. The testimony of the witnesses, both of whom

were credible, failed to establish a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought to

be established. Thus, except as set forth in the following

paragraph, Petitioner failed to prove, by clear and convincing

evidence, the elements of Count 7.D. that the structure elements

were overstressed, and that Respondent failed to proportion the

subject framing elements in compliance with FBC strength

standards. This finding is not one that the elements identified

in the allegation were actually compliant, but is one based on a

failure of proof.

64. As to one connection at which the Frame A beam

attached to the carrier beam, which was identified by Mr. Martin

as ID 3028, the evidence was clear and convincing that the

applied bending moment, assuming that all of the connections of

Frame A were fixed, was 27,201.9 inch-pounds, which exceeded the

allowable bending moment calculated by Mr. Driscoll. There was

no evidence that the allowable bending moment used in that

analysis was unsupported by sound engineering principles. Thus,

at the ID 3028 location where the Frame A beam attached to the

carrier beam, Frame A was overstressed. Thus, Petitioner

proved, by clear and convincing evidence, the elements of Count

7.D. that Frame A was overstressed at code-prescribed design

loading and that Respondent therefore failed to proportion the

subject framing elements in compliance with FBC strength

standards. Count 7.E.

65. Count 7.E. alleged that Respondent failed to provide a

foundation plan for the specific construction proposed.

66. Mr. Martin testified that documents sealed and

submitted by Respondent were sufficient to establish the

foundation plan for the Emilion project. In Mr. Martin’s

opinion, the details, including the “Typical Post Base Detail”

and “Typical Foundation Details,” were adequate to enable a

contractor to construct the project in accordance with the

engineering design document.

67. Mr. Berryman did not agree that the foundation

elements depicted in the detail sheet were sufficient to

establish a foundation plan. However, his opinion in that

regard was largely predicated on his presumption that the

preprinted disclaimer that “certification extends only for the

tabulated spans of the structural shapes listed” meant that the

entire detail sheet was to be disregarded except for the span

table.

68. In Mr. Martin’s opinion, the limitation or

“disclaimer” language related only to beam spans, and did not

serve to disclaim Respondent’s responsibility for the

information contained in the certified detail sheets.

69. It is common for an engineer to incorporate standard

details into a design when appropriate. When a document is

sealed, whether an original drawing or a standardized detail

sheet, that seal represents the certification that the engineer

is taking responsibility for the document. As indicated

previously, the construction of the disclaimer applied by

Mr. Berryman has the effect of nullifying the detail sheet in

its entirety, except for the span table. The undersigned finds

that a more reasonable construction is that the limitation

serves to ensure that the span table does not apply to shapes,

sizes, and spans not set forth therein. By applying his seal to

the detail sheet, the undersigned finds that Respondent

incorporated those details into his plans, and took

responsibility for the plans incorporating those details.

70. For the reasons set forth herein, the undersigned

accepts that the detail sheet has been properly incorporated

into Petitioner’s plans for the Emilion Court project. That

does not end the inquiry.

71. The section entitled “Typical Foundation Details” does

not specify a particular foundation plan. As noted by

Mr. Berryman, the sheet provides detail for four different types

of foundations. Petitioner failed to specify which foundation

was applicable, and therefore gave the contractor no useful

information as to which foundation type was appropriate for the

project. Thus, Petitioner proved, by clear and convincing

evidence, the elements of Count 7.E. that Respondent failed to

specify a foundation plan for the Emilion Court project. Count 7.F.

72. Count 7.F. alleged that Respondent failed to address

the design of the structure’s foundations and failed to verify

that the foundations meet the FBC strength requirements.

73. The basis for Count 7.F. is generally the same as that

given for Count 7.E. For the reasons set forth herein, the

undersigned accepts that the foundation detail sheet has been

properly incorporated into Petitioner’s plans for the Emilion

Court project.

74. As set forth in the analysis of Count 7.E., the

typical foundation details do not specify a particular

foundation plan. Petitioner failed to specify which foundation

was applicable and, therefore failed to address the design of

the structure’s foundations and failed to verify that the

project-specific foundation met the FBC strength requirements.

Thus, Petitioner proved, by clear and convincing evidence, the

elements of Count 7.F.

Count 7.G.

75. Count 7.G. alleged that Respondent failed to indicate

the size, section, location, and configuration of the typical

diagonal roof bracing and all wall-bracing components for a

lateral bracing system.

76. As to the size, section, location, and configuration

of the typical diagonal roof bracing, Mr. Martin testified that

“I do not see any diagonal bracing whatsoever. It’s all purlins

and there’s no diagonal bracing.” However, Mr. Martin was not

able to tell whether Respondent determined that diagonal bracing

was not required in the roof section, and in that regard

testified that “since this has an L-shaped plan to it and it has

host walls in both directions to connect to, then the roof

bracing may not be required.”

77. Mr. Berryman’s testimony as to the diagonal roof

bracing was fairly conclusory, and failed to establish the

fundamental element that diagonal roof bracing was necessary for

the Emilion Court project.

78. Although the evidence was clear and convincing that

Respondent failed to include roof-bracing details, the fact that

it was not proven that roof bracing was necessary leads the

undersigned to find that Petitioner failed to prove, by clear

and convincing evidence, that the lack of roof-bracing detail in

this case constitutes a violation as alleged in Count 7.G.

79. Mr. Berryman’s testimony as to the deficiencies in the

description of the cable wall-bracing system was predicated on

his opinion, previously discussed herein, that the typical cable

bracing details contained on the detail sheet submitted with the

plans must be disregarded due to the “span table” limitation.

For the reasons previously discussed, the undersigned finds the

limitation does not serve to negate the detail, nor was that

Respondent’s intent. Furthermore, Respondent modified the

detail in his drawings by specifying the use of 3/16” cable,

rather than the standard 3/32” cable provided in the detail.

Therefore, Respondent separately acknowledged and certified that

detail.

80. Mr. Martin testified that the plans, when read in

conjunction with the certified details, provide sufficient

information as to the wall-bracing components. Thus, Petitioner

failed to prove, by clear and convincing evidence, the elements

of Count 7.G. that Respondent failed to indicate the size,

section, location, and configuration of the wall-bracing

components. Count 7.H.

81. Count 7.H. alleged that Respondent failed to address

the design of the structure’s bracing elements and failed to

verify that the structure’s bracing elements meet the FBC

strength requirements.

82. For the reasons set forth in the analysis of Count

7.G., Petitioner failed to prove, by clear and convincing

evidence, the elements of Count 7.H. that Respondent failed to

address the design of the structure’s bracing elements and

failed to verify that the structure’s bracing elements meet the

FBC strength requirements. Count 7.I.

83. Count 7.I. alleged that in the column of the table for

2x4 SMB, 2x5 SMB, 2x6 SMB, 2x7 SMB, 2x8 SMB, 2x9 SMB, and 2x10

SMB posts, and the 2x7 SMB beam element of Frame A are

overstressed at the listed span and loading, and that in the

column of the table for 7’0” Post Spacing and Exposure Category

C, the 2x4 SMB, 2x5 SMB, 2x6 SMB, 2x7 SMB, 2x8 SMB, 2x9 SMB, and

2x10 SMB, posts are overstressed at the listed span and loading.

84. The calculation of whether a support member is

overstressed varies greatly depending on the means by which the

support members are fastened to one another. In general,

measurements are taken at the base, at the shoulder, and at the

carrier beam or other fixed structure to which a member is

attached. If members are fastened by means of a single

fastener, they are characterized as “pinned” connections.

Pinned connections have greater stresses exerted by rotation and

bending. If members are fastened together with multiple

fasteners, they are generally characterized as “fixed”

connections, with the degree to which they are fixed somewhat

dependant on the number of fasteners per connection.

85. Mr. Berryman determined that Respondent assumed that

the mansard roof had pinned connections at the base, at the

shoulder, and at the connection to the supporting structure. In

making that determination, as with regard to other counts,

Mr. Berryman disregarded the detail sheet that accompanied

Respondent’s drawings due to General Notes and Design Criteria,

#12, that “[c]ertification extends only for the tabulated spans

of the structural shapes listed. The engineer of record shall

verify all other details including overall stability.”

Therefore, despite Respondent having included the detail sheet

that clearly showed connections with multiple fasteners as part

of his engineering package, Mr. Berryman opined that the

disclaimer “specifically excluded all of the details in the

project from his certification. Then there was nothing for me

to consider regarding those details. They’re not part of his

work.” As a result, Mr. Berryman concluded that Respondent

“didn’t design any connections. And actually, I found an issue

with his work because he didn’t design any connections.”

86. The detail sheet provided demonstrates the typical

post to beam connections by the dimensions of each of the

structural members being connected. Each of the typical joints

called for multiple screws. Therefore, the joints were not

pinned, as assumed by Mr. Berryman, but were closer to fixed

joints. Thus, the assumption used by Mr. Berryman that joints

were pinned -- an assumption that would be expected to

materially affect the conclusions as to the stability and

strength of the structure -- was incorrect.

87. In general, the evidence elicited from Mr. Berryman

and Mr. Martin was contradictory, including evidence of the

standard for measuring stresses, the assumptions relied upon for

determining the manner in which structural elements were

connected, and other elements of the analysis. The testimony of

the witnesses, both of whom were credible, failed to establish a

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

the allegations sought to be established. Thus, Petitioner

failed to prove, by clear and convincing evidence, the elements

of Count 7.I. This finding is not one that the elements

identified in the allegation were actually compliant, but is one

based on a failure of proof. Count 7.J.

88. Count 7.J. alleged that Respondent failed to address

the design and verify the structure’s connections, bracing and

anchorage, and failed to verify that they meet the FBC strength

requirements. The basis for the allegation is that the

certification of the generic details and specifications is

limited to the tabular span data listed on the generic details

and specifications drawings. Therefore, Count 7.J., on its

face, requires that the details submitted by Respondent with his

drawings be disregarded.

89. As discussed several times previously, Mr. Berryman

has expressed his opinion that the detail sheets submitted with

the plans must be disregarded due to the “span table”

limitation. For the reasons previously discussed, the

undersigned finds the limitation does not serve to negate the

details, nor was that Respondent’s intent. Thus, since

Petitioner failed to demonstrate that the information conveyed

in the details did not comply with the FBC, and for the reasons

otherwise expressed with regard to other similar counts,

Petitioner failed to prove, by clear and convincing evidence,

the elements of Count 7.J. Count 7.K.

90. Count 7.K. alleged that the beam span table in

“Drawing 2”, the 2x4, 2x5, 2x6, and 2x8 beam elements are

overstressed at the listed span and loading in frame

configurations allowed by the table, and that the 2x2 snap beam

element is overstressed for all spans listed.

91. Mr. Berryman’s opinion that the structure was

overstressed is, again, largely predicated on his assumption

that the structure had pinned connections. The evidence is more

persuasive that the connections were fixed.

92. For the reasons set forth in the analysis of Count

7.I., including the contradictory testimony of the two generally

credible witnesses, the evidence failed to establish a firm

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

allegations sought to be established. Thus, Petitioner failed

to prove, by clear and convincing evidence, the elements of

Count 7.K. This finding is not one that the elements identified

in the allegation were actually compliant, but is one based on a

failure of proof.

CONCLUSIONS OF LAW

A. Jurisdiction .

93. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2012).

B. Standards

94. Section 471.033, Florida Statutes, entitled

Disciplinary Proceedings, provides, in pertinent part, that:

(1) The following acts constitute grounds

for which the disciplinary actions in

subsection (3) may be taken:

* * *

(g) Engaging in fraud or deceit,

negligence, incompetence, or misconduct, in

the practice of engineering.

95. Rule 61G15-19.001, entitled Grounds for Disciplinary

Proceedings, provides, in subsection (4), that:

(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 approve 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 Professional 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 engineer.

96. Rule 61G15-30.003, entitled Minimum Requirements for

Engineering Documents, provides, in subsection (1), that:

(1) Engineering Documents are prepared in

the course of performing engineering

services. When prepared for inclusion with

an application for a general building

permit, the Documents shall meet all

Engineer’s Responsibility Rules, set forth

in Chapters 61G15-31, 61G15-32, 61G15-33,

and 61G15-34, F.A.C., and be of sufficient

clarity to indicate the location, nature and

extent of the work proposed and show in

detail that it will conform to the

provisions of the Florida Building Code,

adopted in Section 553.73, F.S., and

applicable laws, ordinances, rules and

regulations, as determined by the AHJ

[Authority Having Jurisdiction]. The

Documents shall include:

(a) Information that provides material

specifications required for the safe

operation of the system that is a result of

engineering calculations, knowledge, and

experience.

(b) List Federal, State, Municipal, and

County standards, codes, ordinances, laws,

and rules, with their effective dates, that

the Engineering Documents are intended to

conform to.

(c) Information, as determined by the

Engineer of Record, needed for the safe and

efficient operation of the system.

(d) List engineering design criteria;

reference project specific studies, reports,

and delegated Engineering Documents.

(e) Identify clearly elements of the design

that vary from the governing standards and

depict/identify the alternate method used to

ensure compliance with the stated purpose of

these Responsibility Rules.

97. Rule 61G15-31.002(5) defines “Structural Engineering

Documents” as follows:

The structural drawings, specifications and

other documents setting forth the overall

design and requirements for the

construction, alteration, repair, removal,

demolition, arrangement and/or use of the

structure, prepared by and signed and sealed

by the engineer of record for the structure.

Structural engineering documents shall

identify the project and specify design

criteria both for the overall structure and

for structural components and structural

systems. The drawings shall identify the

nature, magnitude, and location of all

design loads to be imposed on the structure.

The structural engineering documents shall

provide construction requirements to

indicate the nature and character of the

work and to describe, detail, label, and

define the structure's components, systems,

materials, assemblies, and equipment.

98. Rule 61G15-30.002(1) defines “Engineer of Record” as

“[a] Florida professional engineer who is in responsible charge

for the preparation, signing, dating, sealing, and issuing of

any engineering document(s) for any engineering service or

creative work.”

99. Rule 61G15-31.001, entitled General Responsibility,

provides, in pertinent part, that:

The Engineer of Record is responsible for

all structural aspects of the design of the

structure including the design of all of the

structure’s systems and components . . . .

[T]he structural engineering documents shall

address, as a minimum, the items noted in

the following subsections covering specific

structural systems or components. The

Engineer of Record’s structural engineering

documents shall identify delegated systems

and components. [T]he Engineer of Record

for the structure . . . shall comply with

the requirements of the general

responsibility rules, Chapter 61G15-30,

F.A.C., and with the requirements of the

more specific structural responsibility

rules contained herein. . . .

C. The Burden and Standard of Proof.

100. The Petitioner bears the burden of proving the

specific allegations of fact that support the charges alleged in

the Administrative Complaint by clear and convincing evidence.

§ 120.57(1)(j), Fla. Stat.; Dep’t of Banking & Fin., Div. of

Sec. & Inv. Prot. v. Osborne Stern and Co. , 670 So. 2d 932 (Fla.

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

Dep’t of Ins. and Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998).

101. Clear and convincing evidence “requires more proof

to the exclusion of a reasonable doubt.’” In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). The clear and convincing

evidence level of proof

entails both a qualitative and quantitative

standard. The evidence must be credible;

the memories of the witnesses must be clear

and without confusion; and the sum total of

the evidence must be of sufficient weight to

convince the trier of fact without

hesitancy.

Clear 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 allegations sought to

be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting, with

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

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Although this standard of proof may be met where the evidence

is in conflict, it seems to preclude evidence that is

ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Bros.,

Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

102. Section 471.033 is penal in nature, and must be

strictly construed, with any ambiguity construed against the

Petitioner. Penal statutes must be construed in terms of their

literal meaning, and words used by the Legislature may not be

expanded to broaden the application of such statutes. Elmariah

v. Dep’t of Bus. & Prof’l Reg. , 574 So. 2d 164, 165 (Fla. 1st

DCA 1990); see also Beckett v. Dep’t of Fin. Svcs. , 982 So. 2d

94, 100 (Fla. 1st DCA 2008); Whitaker v. Dep’t of Ins. , 680 So.

2d 528, 531 (Fla. 1st DCA 1996); Dyer v. Dep’t of Ins. &

Treasurer , 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

103. The charges against Respondent were based on

allegations of his negligent violation of general standards of

professional conduct and breach of a duty to follow sound

engineering practices, and therefore “required evidentiary proof

of some standard of professional conduct as well as deviation

therefrom.” Purvis v. Dep’t of Prof’l Reg. , 461 So. 2d 134, 136

(Fla. 1st DCA 1984); see also Gross v. Dep't of Health , 819 So.

2d 997, 1004-1005 (Fla. 5th DCA 2002); McDonald v. Dep’t of

Prof’l Reg. , 582 So. 2d 660, 670-671 (Fla. 1st DCA 1991)

(Zehmer, J., concurring); Cohn v. Dep’t of Prof’l Reg. , 477 So.

2d 1039, 1046 (Fla. 3rd DCA 1985).

Shank Residence Project

104. Given the admissible testimony and evidence presented

at the final hearing, Petitioner proved, by clear and convincing

evidence, that Respondent engaged in negligence in the practice

of engineering for the Shank Residence project with regard to

Count 6.A.; Count 6.B., regarding the column spacing at the

fourth wall and the spacing of the intermediate roof beam; Count

6.C.; Count 6.D., and Count 6.E.; and in so doing proved, by

clear and convincing evidence, that Respondent violated section

471.033 and Florida Administrative Code Rules 61G15-19.001(4)

and 61G15-30.003 with regard to those counts.

105. Given the admissible testimony and evidence presented

at the final hearing, Petitioner failed to prove, by clear and

convincing evidence, that Respondent engaged in negligence in

the practice of engineering for the Shank Residence project with

regard to Count 6.B., regarding the dimensions of the canopy at

the fourth wall and the dimensions of the knee brace elements;

and in so doing failed to prove, by clear and convincing

evidence, that Respondent violated section 471.033 and Florida

Administrative Code Rule 61G15-19.001(4) and Rule 61G15-30.003

with regard to that count.

Emilion Court Residence Project

106. Given the admissible testimony and evidence presented

at the final hearing, Petitioner proved, by clear and convincing

evidence, that Respondent engaged in negligence in the practice

of engineering for the Emilion Court Residence project with

regard to Count 7.B. regarding the details of the connection of

the structure to the transom wall or other element of the

Emilion Court residence; Count 7.C.; Count 7.D., regarding the

overstressing of Frame A at ID 3028; Count 7.E.; and Count 7.F.;

and in so doing proved, by clear and convincing evidence, that

Respondent violated section 471.033 and Florida Administrative

Code Rules 61G15-19.001(4) and 61G15-30.003 with regard to those

counts.

107. Given the admissible testimony and evidence presented

at the final hearing, Petitioner failed to prove, by clear and

convincing evidence, that Respondent engaged in negligence in

the practice of engineering for the Emilion Court Residence

project with regard to Count 7.A.; 7.B. except for that

regarding the point of attachment to the host structure; 7.D.,

except for the overstressing of Frame A at ID 3028; 7.G.; 7.H.;

7.I.; 7.J.; and 7.K.; and in so doing failed to prove, by clear

and convincing evidence, that Respondent violated section

471.033 and Florida Administrative Code Rules 61G15-19.001(4)

and 61G15-30.003 with regard to those counts.

AFFIRMATIVE DEFENSES

108. In addition to the foregoing elements of the

Administrative Complaint, Respondent raised seven affirmative

defenses to the Administrative Complaint. Respondent bears the

burden of proving the facts that support each defense.

Ellingham v. Fla. Dep't of Child. & Fam. Servs. , 896 So. 2d 926,

927 (Fla. 1st DCA 2005); Pub. Health Trust of Dade Cnty. v.

Holmes , 646 So. 2d 266, 267 (Fla. 3d DCA 1994). The defenses

are addressed as follows: First Affirmative Defense

109. In his First Affirmative Defense, Respondent alleged

that “the allegations, even if proven by clear and convincing

evidence, would not justify imposing discipline.” The defense

that there was no “injury in fact” resulting from any

deficiencies in the design.

110. Respondent failed to produce any evidence of a de

minimis exception to the Board’s disciplinary authority under

section 471.033 and the rules promulgated thereunder.

111. Respondent failed to demonstrate that negligence in

engineering as defined in rule 61G15-19.001 requires proof of

actual injury and causation as is required for common law

negligence. Rule 61G15-19.001 defines negligence as applied to

licenced professional engineers 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.” The rule was

not challenged. Thus, the fact that the structures have not

actually failed does not mean that the plans from which the

structures were built complied with relevant standards of

engineering. Cf. Sheils v. Fla. Eng’rs Mgmt. Corp. , 886 So. 2d

426, 429 (Fla. 4th DCA 2004).

112. Rule 61G15-19.001 establishes the grounds for

disciplinary proceedings, and rule 61G15-19.004 establishes the

disciplinary guidelines for violations of chapter 471 and the

rules promulgated thereunder. Respondent did not challenge

those rules.

113. Regarding the suggestion that the “low ‘importance

rating’” of the structures was a basis to forego discipline,

rule 61G15-19.004(3)(b) establishes mitigating circumstances to

lessen the Board’s generally applicable disciplinary guidelines,

which include “[i]n 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.”

The application of that rule addresses the issue raised in

Respondent’s First Affirmative Defense.

114. Respondent has failed to meet his burden of proof as

to any “injury in fact” requirement that must be met in order

for the Petitioner to commence a disciplinary proceeding, or of

any de minimis exception other than that established by rule.

Thus, Respondent's First Affirmative Defense is rejected. Second Affirmative Defense

115. In his Second Affirmative Defense, Respondent alleged

that “the reports of the peer reviewers, the sole basis for the

initiation of this action, are materially erroneous and

misleading.”

116. The Second Affirmative Defense is a commentary on the

evidentiary value of certain exhibits, and the appropriate

weight that should be given to those exhibits by the

undersigned. The allegations are not in the nature of “an

avoidance or affirmative defense.” See, e.g. , Rule 1.110(d),

Fla. R. Civ. P. Thus, Respondent's Second Affirmative Defense

is rejected. Third Affirmative Defense

117. In his Third Affirmative Defense, Respondent alleged

that “the peer review reports, the sole basis for the initiation

of this action, show that the prosecution experts are so biased

as to establish a clear violation of Respondent’s fundamental

right to due process of law.”

118. The undersigned finds that the peer review reports do

not constitute evidence of bias on the part of the experts, the

FEMC, or Petitioner.

119. Disciplinary proceedings are de novo in nature. The

proposed agency action as reflected by the Administrative

Complaint has no dispositive effect on the undersigned’s

consideration of the merits of the case, and the burden remains

on the Petitioner to prove each element of its case by clear and

convincing evidence.

120. There was no competent, substantial evidence adduced

at the hearing in this proceeding to substantiate that

Respondent’s fundamental right to due process of law was

infringed upon in any way by Petitioner in the course of this

proceeding.

121. Respondent has failed to meet his burden of proof, as

no evidence was adduced to support the allegation that the

prosecution experts were so biased as to establish a clear

violation of Respondent’s fundamental right to due process of

law. Thus, Respondent's Third Affirmative Defense is rejected. Fourth Affirmative Defense

122. In his Fourth Affirmative Defense, Respondent alleged

that “the agency’s peer review/project review procedures,

pursuant to which Petitioner filed this ‘violation of probation’

action constitute an invalid unadopted rule within the

contemplation of sec. 120.57(1)(e).”

123. An “unadopted rule” is defined as “an agency

statement that meets the definition of the term ‘rule,’ but that

has not been adopted pursuant to the requirements of s. 120.54.”

§ 120.52(20), Fla. Stat. A “rule” is defined, in pertinent

part, as “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 includes

any form which imposes any requirement or solicits any

information not specifically required by statute or by an

existing rule.” § 120.52(16), Fla. Stat.

124. Respondent did not introduce evidence sufficient to

establish Petitioner’s peer review/project review procedures.

The only evidence of any “procedure” in this case was that

agreed upon by the stipulation of the parties and incorporated

in the Final Order in Case Nos. 2007062474 and 2008062082.

Furthermore, Respondent introduced no evidence that the

methodology implemented by Petitioner to determine whether

sufficient evidence existed to proceed with the issuance of an

Administrative Complaint was a statement “of general

applicability that implements, interprets, or prescribes law or

policy or describes the procedure or practice requirements of an

agency.” Respondent failed to meet his burden of proof, thus,

Respondent's Fourth Affirmative Defense is rejected. Fifth Affirmative Defense

125. In his Fifth Affirmative Defense, Respondent alleged

that “the agency failed to follow the proper rules for

commencing a disciplinary action.” The basis for the defense

was the allegation that the “Explanation of Rights” and

“Election of Rights” forms that accompanied the Administrative

Complaint referenced rule 28-106.201 as establishing the

procedure for filing a petition to challenge the proposed agency

action, rather than rule 28-106.2015, which applies specifically

to petitions to challenge proposed disciplinary or enforcement

actions.

126. The issue raised by Respondent was unsupported by any

evidence that the misidentification of the uniform rule of

procedure applicable to challenges of proposed agency action in

a disciplinary proceeding impaired the fairness of the

proceedings, or prejudiced the rights or remedies available to

Respondent in any way.

127. Respondent received a full hearing in which he was

able to exercise his due process rights, and mount a vigorous

defense to the Administrative Complaint. Carter v. Dep’t of

Prof’l Reg., Bd. of Optometry , 633 So. 2d 3, 5-6 (Fla. 1994);

Ames v. Dist. Bd. of Trs. , 908 So. 2d 1142, 1144 (Fla. 1st DCA

2005). Thus, Respondent's Fifth Affirmative Defense is

rejected. Sixth Affirmative Defense

128. In his Sixth Affirmative Defense, Respondent alleged

a “violation of sec. 455.221(2), Fla. Stat.” related to the

appearance of counsel for the FEMC as prosecutor at the meeting

of the Board’s Probable Cause Panel at which the decision to

proceed with the issuance of an Administrative Complaint against

Respondent was made.

129. Section 455.221 provides, in pertinent part, that:

(1) The department shall provide board

counsel for boards within the department by

contracting with the Department of Legal

Affairs, by retaining private counsel

pursuant to s. 287.059, or by providing

department staff counsel. The primary

responsibility of board counsel shall be to

represent the interests of the citizens of

the state . . . .

(2) The Department of Business and

Professional Regulation may employ or

utilize the legal services of outside

counsel and the investigative services of

outside personnel. However, no attorney

employed or used by the department shall

prosecute a matter and provide legal

services to the board with respect to the

same matter. (emphasis added).

130. Section 471.038 provides, in pertinent part, that:

(3) The Florida Engineers Management

Corporation is created to provide

administrative, investigative, and

prosecutorial services to the board in

accordance with the provisions of chapter

455 and this chapter. The management

corporation may hire staff as necessary to

carry out its functions . . . . The

management corporation shall:

* * *

(b) Provide administrative, investigative,

and prosecutorial services to the board in

accordance with the provisions of chapter

455, this chapter, and the contract required

by this section.

* * *

(d) Be approved by the board, and the

department, to operate for the benefit of

the board and in the best interest of the

state.

(4) The management corporation may not

exercise any authority specifically assigned

to the board under chapter 455 or this

chapter, including determining probable

cause to pursue disciplinary action against

a licensee, taking final action on license

applications or in disciplinary cases, or

adopting administrative rules under chapter

120.

(5) Notwithstanding ss. 455.228 and

455.2281, the duties and authority of the

department to receive complaints and to

investigate and deter the unlicensed

practice of engineering are delegated to the

board. The board may use funds of the Board

of Professional Engineers in the unlicensed

activity account established under s.

455.2281 to perform the duties relating to

unlicensed activity.

(6) The department shall retain the

independent authority to open or investigate

any cases or complaints, as necessary to

protect the public health, safety, or

welfare. In addition, the department may

request that the management corporation

prosecute such cases and shall retain sole

authority to issue emergency suspension or

restriction orders pursuant to s. 120.60.

131. The record in this case suggests that the Board was

represented by counsel provided by the Department at the July

11, 2011 meeting of the Probable Cause Panel, which counsel

provided legal advice to the panel. When Respondent’s case came

up on the agenda for consideration, counsel for the FEMC

appeared, as prosecutor, to present the Administrative Complaint

for consideration.

132. There was no evidence submitted that counsel for the

FEMC provided legal services or advice to the Probable Cause

Panel, or provided anything other than the prosecutorial

services specifically authorized by section 471.038.

133. The undersigned is cognitive of the Recommended Order

entered in Dep’t of Prof’l Reg., Bd. of Dentistry v. LeBaron ,

DOAH Case No. 82-1863 (Fla. DOAH Dec. 8, 1982; Fla. DPR F.O. not

available) 2/ , in which the prosecuting attorney “stated to the

panel that the Department's present position was to prosecute

first offenses of incompetency on the part of licensees.” In

dismissing the Administrative Complaint, the hearing officer

concluded that “the proceedings were tainted by the presence and

advice rendered by the prosecutor, and it is unnecessary to

determine the extent to which his statements to the panel may or

may not have influenced their ultimate determination.”

(emphasis added).

134. The undersigned believes the Recommended Order in

LeBaron is limited to its narrow facts in which the prosecutor

provided clear legal advice to the Probable Cause Panel

regarding issues of departmental policy that drove the panel’s

decision. Such facts have not been shown in this case.

135. In Dept. of Prof’l Reg., Bd. of Dentistry v. Beckum ,

DOAH Case No. 83-0527 (Fla. DOAH Aug. 19, 1983; Fla. DPR F.O.

Sept. 28, 1983); aff’d 461 So. 2d 943 (Fla. 1st DCA 1984), the

hearing officer found that:

The attorney who prosecuted this matter on

behalf of the Department of Professional

Regulation appeared at the probable cause

panel meeting. The attorney made

recommendations to the panel, some of which

were followed. It does not appear that the

attorney was providing legal services to the

probable cause panel, but rather that he was

making recommendations as a prosecutor.

He then concluded that:

While it does appear that the attorney

employed to prosecute this matter made

recommendations to the probable cause panel,

it does not appear that he provided legal

services. To the extent that he did, it

does not appear that the fairness of the

proceeding or the correctness of the action

taken by the panel was impaired. Dismissing

the complaint would therefore be

inappropriate.

136. The undersigned agrees with the hearing officer in

Beckum that some impairment of the fairness of the proceeding or

the correctness of the action must be shown to justify the

imposition of the sanction of dismissal of the Administrative

Complaint. As did the Court in Sternberg v. Dept of Prof’l

Reg., Bd. of Medicine , 465 So. 2d 1324, 1325 (Fla. 1st DCA

1985), the undersigned finds in this case “no impropriety on the

Board's part such as to deprive [Respondent] of a fair hearing

before an impartial tribunal.” See also Carter v. Dep’t of

Prof’l Reg. , 633 So. 2d at 6, (“courts have consistently applied

the harmless error rule when reviewing agency action resulting

from a procedural error”).

137. For the reasons set forth herein, Respondent's Sixth

Affirmative Defense is rejected. Seventh Affirmative Defense

138. In his Seventh Affirmative Defense, Respondent

alleged a “lack of subject matter jurisdiction” based on the

authority of local jurisdictions to enforce violations of the

FBC, including the imposition of monetary penalties against

regulated professionals, including engineers, pursuant to

sections 553.781 and 553.80, Florida Statutes. Respondent’s

defense is essentially one of preemption.

139. Chapter 553, Part IV establishes the FBC, and

authorizes local jurisdictions to enforce violations of the FBC.

Section 553.781(2) provides that:

(2)(a) Upon a determination by a local

jurisdiction that a licensee,

certificateholder, or registrant licensed

under chapter 455, chapter 471, chapter 481,

or chapter 489 has committed a material

violation of the Florida Building Code and

failed to correct the violation within a

reasonable time, such local jurisdiction

shall impose a fine of no less than $500 and

no more than $5,000 per material violation.

(b) If the licensee, certificateholder, or

registrant disputes the violation within 30

days following notification by the local

jurisdiction, the fine is abated and the

local jurisdiction shall report the dispute

to the Department of Business and

Professional Regulation or the appropriate

professional licensing board for

disciplinary investigation and final

disposition. If an administrative complaint

is filed by the department or the

professional licensing board against the

certificateholder or registrant, the

commission may intervene in such proceeding.

Any fine imposed by the department or the

professional licensing board, pursuant to

matters reported by the local jurisdiction

to the department or the professional

licensing board, shall be divided equally

between the board and the local jurisdiction

which reported the violation.

140. Based on the foregoing, both the Department and the

local jurisdictions have a role in enforcing violations of the

FBC.

141. Though a determination of compliance with the FBC by

local building officials under chapter 553 is not dispositive of

whether an engineer was negligent under chapter 471, it does go

to the issue of whether Respondent exercised due care in the

performance of his engineering duties. See Seibert v. Bayport

Beach & Tennis Club Ass’n , 573 So. 2d 889, 892 (Fla. 2d DCA

1990).

142. Where Respondent’s argument fails is that it does not

recognize the independent disciplinary authority conferred by

the Legislature upon the Petitioner under chapters 455 and 471,

based not on whether there has been a specific violation of the

FBC, but on whether an engineer has failed to perform services

in conformance with sound engineering practices.

143. There has been no suggestion that this action was

brought without meeting the general procedural requirements of

section 455.225 and section 471.033.

144. Though the grounds for discipline under chapter 553

may be related to, and in some respects overlap those under

chapters 455 and 471, they are not mutually exclusive, and there

is no indication of any intent by the legislature that one is to

preempt the other. Thus, Respondent's Seventh Affirmative

Defense is rejected.

PENALTIES

145. Section 455.2273 requires each board within the

Department to adopt, by rule, disciplinary guidelines applicable

to each ground for disciplinary action that may be imposed by

the board. Petitioner adopted Florida Administrative Code Rule

61G15-19.004 to establish the Board of Professional Engineers’

disciplinary guidelines, which guidelines include penalty ranges

and aggravating and mitigating circumstances.

146. The violations established in this proceeding

constitute a second violation for purposes of Respondent’s

disciplinary guidelines.

147. The penalties established for a second offense of

negligence in violation of section 471.033(1)(g) range from two

years' probation and a $1,000 fine, to a $5,000 fine and

revocation of the license. Fla. Admin. Code R. 61G15-

19.004(2)(g)2.

148. Section 455.227(3) provides that “[i]n addition to .

. . discipline imposed for a violation of any practice act, the

board . . . may assess costs related to the investigation and

prosecution of the case excluding costs associated with an

attorney’s time.”

149. Petitioner has requested that Respondent be

reprimanded, that he be placed on probation for two years, that

his license be restricted from practicing structural engineering

involving the design of aluminum structures until such time as

he passes the NCEES Structural Engineering Examination, that he

be fined $5,000, and that costs related to the investigation and

prosecution of this case be assessed against him.

150. Petitioner’s penalty request was based upon

Respondent being found to have violated each of the counts

brought against him.

151. Among the aggravating circumstances established by

rule that could justify an enhancement of the applicable penalty

beyond the maximum is a “[h]istory of previous violations of the

practice act and the rules promulgated thereto.” That

aggravating circumstance applies in this case.

152. Among the mitigating circumstances established by

rule that could justify a reduction of the applicable penalty

below the minimum is “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.” The evidence in this case demonstrates the

applicability of that mitigating circumstance in this case.

153. The undersigned finds that the aggravating and

mitigating circumstances cancel each other out, and therefore

neither has been considered in the assessment of an appropriate

penalty in this case.

154. Given that several of the counts against Respondent

were not proven, a penalty less than that requested by

Respondent is appropriate.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED that the Florida Board of Professional

Engineers enter a Final Order finding that Respondent is guilty

of violating section 471.033(1)(g), Florida Statutes, and

Florida Administrative Code Rule 61G15-19.001 for the counts

identified herein. It is further recommended that Respondent be

reprimanded, that he be placed on probation for two years, that

his license be restricted from practicing structural engineering

involving the design of aluminum structures until such time as

he passes and submits proof of passing the NCEES Structural

Engineering Examination, that he be fined $2,000, and that costs

related to the investigation and prosecution of this case be

assessed against him.

DONE AND ENTERED this 6th day of November, 2012, in

Tallahassee, Leon County, Florida.

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of November, 2012.

ENDNOTES

1/ There was significant discussion as to whether the

intermediate beam was necessary to account for the load exerted

by the composite roof structure. Count 6.B. did not allege that

the intermediate beam was overstressed or that it was not

capable of handling the loads and stresses applied by the patio

structure. Rather, the allegation was that the drawings failed

to provide sufficient information for a building contractor to

be able to construct the structure in accordance with the plans.

Therefore, the information as to loading and deflection is not

relevant to the essential elements of Count 6.B.

2/ The Department did not enter a final order, but rather

unsuccessfully attempted to take a direct appeal of the

recommended order. Dep’t of Prof’l Reg. v. LeBaron , 443 So. 2d

225 (Fla. 1st DCA 1983).

COPIES FURNISHED :

John Jefferson Rimes, III, Esquire

Board of Professional Engineers

Florida Engineers Management Corp.

2639 North Monroe Street Suite B-112

Tallahassee, Florida 32303

Nicholas Martino, Esquire

McCabe Law Group, P.A.

1400 Prudential Drive Suite 5

Jacksonville, Florida 32207

Philip J. Stoddard

North Star Associates, LLC

258 Laguna Court

St. Augustine, Florida 32086

Zana Raybon, Executive Director

Board of Professional Engineers

Department of Business

and Professional Regulations

2639 North Monroe Street, Suite B-112

Tallahassee, Florida 32303-5268

Michael Flury, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

J. Layne Smith, General Counsel

Department of Business

and Professional Regulations

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 case.