12-001202RX Joseph Rickett, P.E. vs. Florida Board Of Professional Engineers, A Division Of The Florida Department Of Business And Professional Regulation Status: Closed DOAH Final Order on Friday, March 1, 2013.

Summary: Petitioner's de facto suspended Florida Engineer's license not practicing in Florida or another state, does not have standing to challenge negligence and responsibility rules or alleged non-rules unrelated to obtaining license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH RICKETT, P.E. , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1202RX

)

FLORIDA BOARD OF PROFESSIONAL )

ENGINEERS, A DIVISION OF THE )

FLORIDA DEPARTMENT OF BUSINESS )

AND PROFESSIONAL REGULATION , )

)

Respondent . )

)

FINAL ORDER

P ursuant to notice, a final hearing was conducted in thi s

case before Diane Cleavinger, an Administrative Law Judge of the

Division of Administrative Hearings, by partial hear ing on

September 18, 2012, in Jacksonville, Florida and by written

submissions filed by the parties .

APPEARANCES

For Petitioner: Michael John McCabe, Esquire

McCabe Law Group, P.A.

Suite 5

1400 Prudentia l Drive

Jacksonville, Florida 32207

William Sheppard, Esquire

Matthew Kachergus, Esquire

Sheppard, White and Kachergus, P.A.

215 Washington Street

Jacksonville, Florida 32202

For Respondent: Michael Todd Flury, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE S

The issues in this proceeding are :

1. Whether Petitioner has standing to bring this Rule

Challenge ;

2. Whether Florida Administrative Code Rule 61G15 - 19.001(4)

and the Responsibility Rules set forth in r ule c hapters 61G15 - 30

through 34, and 61G1 5 - 36 are valid rules;

3. Whether the Florida Board of Professional EngineersÓ

(Board) prosecution of licensed professional engineers for

negligence in the practice of engineering, a violation of section

471.033(1)(g), Florida Statutes, outside the framewo rk of section

553.781, Florida Statutes, constitutes an unpromulgated rule; and

4. W hether the Board can impose as discipline a project

review by an exp ert as a condition of probation on a lice nsed

professional engineer for violation of section 471.0331(1 )(g),

Florida Statutes; and whether such an allegation is properly

resolved in a rule challenge.

PRELIMINARY STATEMENT

On April 5, 2012, Petitioner, Joseph Rickett, filed a

petition titled Challenge to Existing Unadopted Rules of the

Florida Board of Profe ssional Engineers. In general, the

Petition challenged the validity of Florida Administrative Code

Rule 61G15 - 19.009(4), defining negligence in the practice of

engineering, and rule s 61G15 - 30 through 36 establishing

engineering practice responsibilities. Further, the Petition

alleged that RespondentÓs prosecution of professional engineers

for negligence in the practice of engineering in violation of

section 471.033(1)(g), Florida Statutes, for negligent design in

plans submitted for permit, outside the fr amework of section

553.781, Florida Statutes, constitute s an unadopted rule .

Finally, the p etition alleged that the imposition of a project

review as a condition of probation in a license disciplinary

action is an Ðunlawful penaltyÑ and constitu t e s an inv alid and/or

unadopted rule.

On April 9, 2012, Petitioner filed an Amended Challenge to

Existing/Unadopted Rules of the Florida Board of Professional

Engineers (Amended Petition) . The A mended P etition add ed a

fourth ground for rule challenge and alleged th at Florida

Administrative Code Rule 61G15 - 36.001 et seq . are invalid

existing rules.

A partial h ea ring was held in this matter on September 18,

2012, in Jacksonville , Florida. Petitioner testified in his own

behalf and called two additional witnesses to t estify .

Respondent did not call any witnesses. At hearing, PetitionerÓs

Exhibits C, D, and L were admitted into evidence. The conclusion

of the final hearing was set for November 28, 2012. Thereafter,

the parties agreed that a live hearing was no longe r necessary in

this case and that the admission of the remaining PetitionerÓs

exhibits (A, B, E Î K, and M Î S) would be argued in the partiesÓ

proposed final orders. As a consequence, t he hearing scheduled

for November 28, 2012, was cancelled and the par ties ordered to

submit proposed final orders by December 14, 2012.

FINDING S OF FACT

1. Respondent, Florida Board of Professional Engineers

(Board), is the state agency charged with the regulation of the

profession of engineering in the state of Florida, pursuant to

c hapter 471, Florida Statutes; and is a division of the

Department of Business and Professional Regulation pursuant to

s ection 20.165(4)(a), Florida Statutes. As such, the B oard, and

its licensees are subject to the provisions of c hapter 455,

Florida Statutes , which applies to the regulation of professions .

2. Petitioner is a professional civil engineer whose

license is suspended in the state of Florida. He holds an

engineering license in California and an inactive license in

Nevada.

3. Cu rrently, Petitioner does not work in the state of

Florida and does not practice civil engineering in the state of

Florida. He is working in Louisiana as a construction or

installation project manager. Petitioner is not working as a

civil engineer and is not licensed in Louisiana as such.

Moreover, as a civil engineer , Petitioner, even if not suspended,

can not practice electrical engineering, can not design air

conditioning or fire protection systems, and can not perform

product evaluations.

4 . In 2010, the Board filed an Administrative Complaint

against Petitioner charging him with negligence in the practice

of engineering in Case No s . 2007050379 and 2007068938 . During

the disciplinary action, Petitioner was represented by an

attorney and had the option to contest the allegations in the

underlying Administrative Complaint . However, Petitioner

voluntarily enter ed into a stipulation with the Board, settling

the disciplinary action against him. In fact, t he terms of the

Final Order were established by the stipulation and were agreed

to by Petitioner. Based on that agreement, Petitioner Ós license

was disciplined by the Board in Final Order Adopting Settlement

Stipulation, dated May 27, 2010 .

5 . Paragraph 12 of the Settlement Stipulation, signed by

Petit ioner states :

12. Respondent expressly waives all further

procedural steps and expressly waives all

rights to seek judicial review or otherwise

challenge or contest the validity of the

joint Stipulation of Facts, Conclusions of

Law, imposition of discipli ne and the Final

Order of the Board incorporating said

Stipulation .

6 . Additionally , under the stipulation, Petitioner

currently cannot practic e engineering in Florida until he takes

and passes the NCEES structural examination. Further, u pon

meeting the conditions to resume practicing in Florida,

Petitioner would be on a two - year probation ary period. While on

probation, Petitioner would be required to take a B oard approved

ethics course, and submit projects he has signed, sealed and

dated, for review by an expert at the six (6) and eighteen (18)

month interval s of the two - year probation ary period .

7. At present, Petitioner has not complied with the terms

of this settlement agreement and cannot practice engineering in

Florida. More importantly, the ev idence did not demonstrate that

any of the rules or alleged non - rules Petitioner challenges here

prevent him from complying with the terms of his settlement with

the Board and/or have any immediate impact on his ability to

comp ly with that agreement. More over, there is no evidence, and

it would be illegitimate to infer, that Petitioner , once able to

practice , would practice in a manner that would cause the Board

to file an administrative complaint against him. Clearly ,

Petitioner, since he cannot and does not practice engineering in

Florida, has failed to demonstrate any immediate in jury in fact

that he would suffer as a result of the rules or alleged non -

rules challenged here. In fact, these rules and alleged non -

rules have no immediate impact on Petitio ner at all. As a

consequence , Petit i oner does not have standing to challenge the

Board's rules or alleged non - rules and this action should be

dismissed.

CONCLUSIONS OF LAW

8 . The Division of Administrative Hearings has jurisdiction

over the parties to an d the subject matter of this proceeding.

§ § 120.56 , 120.569, and 120.57(1), Fl a . Stat .

9. Chapter 471, Fl orid a Stat utes , is the c hapter in Florida

law that governs the practice of engineering in the State.

10. Section 471.033(2) states, ÐThe Boar d shall specify, by

rule, what acts or omissions constitute a violation of subsection

(1).Ñ

11. Section 471.033(1) , states in pertinent part:

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 .

12 . In this case, Petitioner is challenging r ule 61G15 -

19.001, which states , in part :

(1) Pursuant to s ection 471.033(2), F lorida

S tatutes , the B oard, to the extent not

otherwise set forth in Florida Statutes,

hereby specifies that the following acts or

omissions are grounds for disciplinary

proceedings pursuant to s ection 471.033(1),

F.S.:

(4) A professional engineer shall not be

negligent in th e practice of engineering.

The term negligence set forth in s ection

471.033(1)(g), F lorida S tatutes , 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 wit h 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.

13 . Additionally, Petitioner is challenging the BoardÓs

Responsibility Rules as contained in Florida Administrative Code

Rule s 61G15 - 30 through 34, and 36 . T he partie s stipulated that

Florida Administrative Code Rule 61G15 - 35, which relates to

special inspectors of threshold buildings , is not included in

this rule challenge.

14. Rule 61G15 - 30 is the chapter of the BoardÓs

Responsibility R ules common to all engineers. Rule 61G15 - 31, is

the rule chapter of the Responsibility R ules for the design of

structures . Rule 61G15 - 32, concerns the Responsibility R ules for

the design of fire protection systems . Rule 61G15 - 33 establishes

the Responsibility Rules for the design of electrical systems .

Rule 61G15 - 34 concerns the design of mechanical systems and

includes HVAC (heating, ventilation, and air conditioning).

Finally, Rule 61G15 - 36 contains the Responsibility R ules related

to product evaluations.

15. Petitioner alleges standing based on the fact that he

is a licensed engineer subject to the rules he is challenging

here.

1 6 . Florida courts have articulated a two - pronged test for

determining standing in administrative proceedings. Before one

can be considered to have a substantial interest in the outcome

of a proceeding, he must show 1) that the rule or policy will

result in a real and immediate injury in fact, and 2) that the

alleged interest is within the zone of interest to be protected

or regulated. Fla . Bd . of Med . v. Fla . Acad . of Cosmetic

Surgery, Inc. 808 So. 2d 243, 245 (Fla. 1st DCA 2002), superseded

on other grounds by statute as stated in Dep Ó t of Health v.

Merritt , 919 So. 2d 561 (Fla. 1st DCA 2006) ; DepÓt of Corr . v.

Van Poyck , 610 So. 2d 1333, 1335 - 36 (Fl a. 1st DCA 1992) , rev.

den. 620 So. 2d 763 (citing Agrico Chem. Co. v. DepÓt of Environ.

Reg. , 406 So. 2d 478, 482 (Fla. 2d DCA 1981) ) , rev. den. , 415 So.

2d 1359 (Fla. 1982), with approval and applying the test therein

to rule challenges under s ection 12 0.56, Florida Statutes) .

17 . Further, any such injury cannot be speculative,

nonspecific, hypothetical, or lacking in immediacy or reality.

See All Risk Corp. of Fla. v. State DepÓt of Labor & Emp Sec . ,

Div . of Workers' Comp . 413 So. 2d 1200, 1202 (Fla. 1st DCA 1982) ;

Fla . Dep Ó t of Offender Rehab . v. Jerry , 353 So. 2d 1230 (Fla. 1 st

DCA 1978).

18 . Petitioner cites to Jacoby v. Fl orida B oar d of

Medicine , 917 So. 2d 358 (Fla . 1 st DCA 2005) , for the proposition

that, by virtue of holding a profess ional en gineering license, he

would have standing to challenge any rule promulgated by the

Board. However, Petitioner's reliance on Jacoby is misplaced.

19. In Jacoby , the appellant was an allopathic physician

who had applied for and was denied a temporary lic ense due to a

rule and alleged non - rule policy of the Florida Board of Medicine

regarding discipline in another state as a bar to licensure . Id .

at 359. The rule challenge was filed while the case involving

the denial of Jacoby's license was on appeal. The administrat ive

law judge in the rule challenge found that Dr. Jacoby did not

have a pending application; and therefore , did not have standing

to challenge the rule at issue. Id . The First District Court

overturned the administrative law judge's deter min ation finding

that Jacoby was Ðsubstantially affectedÑ because the licensure

rule af fected his ability to obtain a temporary license in

Florida and he could apply for such licens ure in the future .

Consequently , the rule negatively a ffected his ability to obtain

a license and work in Florida . The court ruled that a person has

standing to chal lenge a Board's rules if that person practices

that profession, even if in another state, and those rules relate

to obtaining a licens e in Florida . Id . at 360.

2 0 . However, t he rules and non - rules challenged in this

case are not licensure rules but practice rules involved with

negligence , good practice or the process by which a person is

disciplined . As indicated, the appellant i n Jacoby was able to

show a subst antial interest because he was not able to get a

license by virtue of the Board of MedicineÓs rule.

21. In this case, Petitioner testified that he does not

practice electrical engineering , HVAC o r fire protection.

Likewise, Petitioner does not perform product evaluations .

Clearly, i f Petitioner does not practice a particular discipline,

he has no substantial interest that would be affe cted by the

application of rules related to the particular discipline he does

not practice. Moreover, the evidence did not demonstrate any

interest or immediate injury in f act that could result from rules

regulating those specialty areas . Consequently, Petitioner does

not have standing to challenge the Responsibility Rules in r ule

c hapter 61G15 - 32, related to fire protec tion systems; r ule

c hapter 61G15 - 33, related to electrical systems and electrical

engineering ; r ule 61G15 - 34.003, related to HVAC ; and r ule 61G15 -

36 , related to product evaluations .

22. More importantly , the evidence demonstrated that

Petitioner is not practicing engineering in Florida and cannot

practice in Florida until he passes the structural licensing

examination due to discipline that was imposed on him in 2010 .

T he practice rules and alleged non - rules challenged here have no

immediate impact on P etitioner's ability to comply with the terms

of his agreement with the Board or to practice engineering, if or

when Petitioner becomes qualified to do so. Further, there is no

evidence, and it would be illegitimate to infer, that Petitioner

once able to p ractice would practice in a manner that would cause

the Board to file an administrative complaint against him. In

short, any "injuries" that Petitioner can claim from these

practice rules and alleged non - rules are at best speculative,

hypothetical, and no t of any immediacy or reality . As such ,

Petitioner has no substantial intere st that is affected by the

subject rules and has no s tanding to challenge these rules . See

Off . of Ins . Reg . v. AIU Insurance Co. , 926 So. 2d 479 (Fla. 1st

DCA 2006) (While inter ests of appellees are arguably within the

zone of interests to be regulated . . . , the appell e es did not

demonstrate application of the . . . rule will result in a real

and immediate injury in fact to afford them standing . . . . ) .

23 . Petitioner also alleges standing based upon the

Administrative Complaint and Final Order of discipline imposed by

the Board for violations of s ection 471.033(1 )(g), that placed

Petitioner 's license " under restraint by virtue of RespondentÓs

enforcement of the unlawful rul e and penalty.Ñ

24 . However, PetitionerÓs prior discipline, whether valid

or not, is not a basis for standing in a rule challenge

proceeding especially since such discipline was voluntarily

agreed to by Petitioner. Such a collateral challenge of final

ag ency action might ultimately invalidate the terms of th e

discipline (suspension and probation) imposed in the now final

section 120.57, Fl orida Stat ute s , disciplinary action against

Petit i oner . As such, Petitioner does not have standing based on

the restr aint of his license to practice engineering imposed by a

Final Order to which he agreed . See Dep Ó t of HRS v. Barr , 359

So. 2d 503 (Fla. 1st DCA 1978) and United Wisconsin Life Ins. Co.

v. Dep't of Insurance , 831 So. 2d 239 (Fla. 1st DCA 2002). As

such, t his matter should be dismissed.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is Ordered that

The Amended Challenge to Existing/Unadopted Rules of the

Florida Board of Professional Engineers is dismissed.

DONE AND ORDERED t his 1st day of March , 2013 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of March , 2013 .

COPIES FURNISHED:

Michael John McCabe, Esquire

McCabe Law Group, P.A.

Suite 5

1400 Prudential Dr ive

Jacksonville, Florida 32207

J. Layne Smith, General Counsel

Department of Business

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Michael Todd Flury, Esquire

Office of the Attorney General

Th e Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

William J. Sheppard, Esquire

Matthew Kachergus, Esquire

Sheppard, White and Kachergus, P.A.

215 Washington Street

Jacksonville, Florida 32202

Zana Raybon, Executive Dir.

Board of Professional Eng ineers

Department of Business

and Professional Regulation

2639 North Monroe Street, Suite B - 112

Tallahassee, Florida 32303 - 5268

(e served)

John Rimes, Esquire

Chief Prosecuting Attorney

Florida Engineers Mgmt. Corp.

2639 North Monroe Street, Suite B - 1 12

Tallahassee, Florida 32303 - 5268

Ken Lawson, Secretary

Department of Business

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Liz Cloud, Program Director

Department of State

R.A.Gray Building

50 0 South Bronough Street

Tallahassee, Florida 32399 - 0250

(e served)

Kenneth J. Plante , Esquire

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(e served)

NOTICE OF R IGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing one copy of

a Notice of Appeal with the agency clerk of the Division of

Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First

District, or with the District Cou rt of Appeal in the appellate

district where the party resides. The Notice of Appeal must be

filed within 30 days of rendition of the order to be reviewed.