12-003640F Frank Cleaton, P.E. vs. Florida Board Of Professional Engineers Status: Closed DOAH Final Order on Wednesday, April 24, 2013.

Summary: Petitioner established a prima facie case of entitlement to attorneys' fees and costs pursuant to section 57.111, Florida Statutes, but Respondent proved that its actions were substantially justified.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK CLEATON, P.E. , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3640F

)

FLORIDA BOARD OF PROFESSIONAL )

ENGINEERS , )

)

Respondent . )

)

FINAL ORDER

On February 7, 2013, a duly - noticed hearing was held in

this case in Tallahassee, Flo rida, before F. Scott Boyd, an

administrative law j udge assigned by the Divis ion of

Administrative Hearings.

APPEARANCES

For Petitioner: Michael John McCabe, Esquire

Mc Cabe Law Group, P.A.

1400 Prudential Drive, Suite 5

Jacksonville, Florida 32207

Matthew R. Kachergus, Esquire

Sheppard, White, and Kachergus, P.A.

215 Washington Street

Jacksonville, Florida 32202

For Respondent: John Jefferson Rimes, III, Esquire

Board of Professional Engineers

Florida Engineers Management Corporation

2639 North Monroe Street, Suite B 112

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to attorneysÓ fees and costs

as a prevailing small bus iness party pursuant to section 57.111,

Florida Statutes, and if so, in what amount.

PRELIMINARY STATEMENT

On November 7, 2012, the Florida Board of Professional

Engineers (FBPE or the Board) issued a Final Order dismissing

discip linary charges which had been filed agai nst Petitioner in

DOAH Case No. 12 - 000257PL (the merits case). P etitionerÓs

Motion for Attorney Fees and Costs as a prevailing small

business party was filed in the di smissed merits case on

November 9, 2012. The Eq ual Access to Justice Act (EAJA) vests

final order authority with the administrative law judge, so the

Motion was treated as a Petition for AttorneysÓ Fees and Costs

in a new proceeding , and docketed as DOAH Case No. 12 - 3640F.

Although Petitioner had not s erved Respondent with a copy

of the Motion for AttorneysÓ Fees and Costs, he filed a Notice

of Default and Request for E ntry of Final Order on November 30,

2012. The Order Denying PetitionerÓs Request for Entry of Fin al

Order was issued on December 10, 20 12. On December 12, 2012,

Petitioner filed a Motion to Disqualify Opposing Counsel and to

Strike Improperly Filed Papers. Respondent filed a Mot ion for

Sanctions under section 120.569(2)(e) on December 14, 2012,

alleging that Petitioner had filed pleadin gs for an improper

purpose. The Order Denying Motion to Disqualify Opposing

Counsel was issued on December 28, 2012. On January 2, 2013,

PetitionerÓs Motion to Drop ÐFlorida Engineers Management

Corporation on Behalf of the Florida Board of Professional

EngineersÑ as a Party/Respondent and to Restyle th e Action was

filed. On January 9, 2013, a Joint Motion for Sanctions

alleging that Petitioner had filed pleadings for an improper

purpose was filed by the Board and by the Department of Business

and Profes siona l Regulation. The two M otions for Sanctions were

considered a t the final hearing on February 7, 2013, and were

denied.

At hearing, Petitioner offered the testimony of two

witnesses and offered 18 exhibits, P - A through P - R, all of which

were admitted with the exception of Exhibit P - G, which was found

unduly repetitious and was not admitted. Respondent offered the

testimony of two witnesses and offered 25 exhibits, R - A through

R - Y, all of which we re admitted without objection.

At the partiesÓ request, a deadline of 20 days after

receipt of the Transcript was established for filing Proposed

Final Orders. The T ranscript was received on March 18, 2013.

Both parties timely submitted Proposed Final Orders on April 8,

2013, which were considered in the prep arat ion of this Order.

FINDINGS OF FACT

1. On or about January 14, 2011, an application to

construct a swimming pool and spa with screen enclosure was

filed with the City of De land by Bill Coody Custom Pools

(Coody), a construction contractor. The appl ication was

reviewed by Mr. Joe Crum, a Deland building o fficial involved

with con struction permit approval. Mr. Crum rejected the

application because the design criteria and details for the

design of the screen enclosure appeared to constitute a master

d esign manual, but did not indicate t hat the documents had been

peer - reviewed and did not indicate the required tra ining for

users of the manual.

2. A master design manual is a generic engineering package

prepared by a licensed engineer or architect, which provides

engineering guidance for construction when used along with a

contractorÓs own site - specific design drawing. The documents

submitted to Mr. Crum included generic load and span tables for

various framing elements and generic construction details f or

screen enclosures, and appeared to leave selection of various

elements to contractors depending on the site - specific design.

3. The documents ha d been provided to Coody by Mr. Frank

Cleato n, P.E. Mr. Crum contacted Mr. Cleaton on or about

January 24, 2011, about the failure of the documents to meet the

requirements for master - design - manual engineering.

4. After Mr. CrumÓs inquiry, Mr. Cleaton prepared a letter

dated January 26, 2011, authorizing Coody to use Ðmy sealed

engineering set of design crit eria and details for the design of

aluminum structures.Ñ The letter further provided in relevant

part:

In accordance with Florida Statute

489.113(9), this sealed engineering set is

intended to be used as a reference in

conjunction with the contractorÓs ow n site -

specific design drawing. The contractorÓs

drawing is not required to be sealed by me

as the engineer of record as per FS

489.113(9). It is only required to be in

compliance with what is set forth in my

sealed design set.

Design documents for the 135 Bir chmont Drive screen enclosure

were also signed and s ealed by Mr. Cleaton on January 26, 2011,

after the inquiry from Mr. Crum. These included only one site -

specific document. All other drawings contained the same

generic load and span tables, with some elements of those tables

circled or otherwise identified for incorporation into the

Birchmont structure.

5. The site - specific drawing s for the Birchmont screen

enclosure were submitted with a permit application filed by

Coody.

6. According to the d rawin gs of the Birchmont screen

enclosure , t he structure is less than 1 , 200 square feet in area

and less than one story in height.

7. The Florida Engineers Management Corporation (FEMC)

provides administrative, investigative, and prosecutorial

services t o the Board of Professional Engineers.

8. On or about February 9, 2011, FEMC received an e - mail

from Mr. Crum alleging that Davis and Cleaton Engineering was

providing a master design manual for aluminum structures that

did not meet statutory requirements for the use of master design

manuals.

9. The following day, Ms. Wendy Anderson, 1/ an investigator

for FEMC, requested additi onal information from Mr. Crum.

10. On or about February 11, 2011, at about 11:47 a.m.,

FEMC received an e - mail from Mr. Crum ref erencing "improper

master file engineering." Attached to the e - mail was a copy of

the permit applica tion package for the screen enclosure located

at 135 Birchmont Drive, Deland, Florida, that had been submitted

to the Deland Building Department by Coody . The permit

application package included documents signed and sealed by

Frank Cleaton, P.E.

11. The documents provided to FEMC by Mr. Crum did not

identif y any third - party peer review er or detail the training

requiremen ts for those using the manual.

12. The determination that there was enough information to

open an investigation was made by Ms. A nderson in consultation

with the FEMC p rosecutor, Mr. John Rimes.

13. FEMC had reasonable cause to believe that M r. Cleaton

had violated section 489.113(9), Flor ida Statutes (2010), based

upon the e - mails from Mr. Crum and the documents he provided.

14. After receiving the copy of the "file with the

improper master engineering," Ms. Anderson opened a Complaint

File with FEMC, Case No. 2011007349.

15. On March 22 , 2011, Ms. Anderson provided notice of the

investigation to Mr. Cleaton.

16. The only formal pre - P robable C ause P anel notification

given to Mr. Cleaton of any pending complaint r egarding the

design for the Birchmont proje ct was the letter sent on

March 2 2, 2011.

17. The March 22, 2011, lette r from Ms. Anderson advised

Mr. Cleaton that he had the option to submit a written response

to the complaint for consideration by legal staff and the

Probable Cause Panel (PCP) of the Board. It also advised him

that he could submit a written request for a copy of the

investigative file that would be provided to him once the

investigation was complete.

18. Mr. Cleaton never requested that he be provided a copy

of the investigative file.

19. A letter dated March 31 , 2 011, from Mr. Cleaton to

Ms. Anderson was rec eived by FEMC on or about April 11, 2011.

The letter stated that Mr. Cleaton had Ðclearly and specifically

told the building departmentÑ that the package was not to be

considered a master design manual. The re sponse also stated

that a Ðsigned and sealed drawingÑ had been provided Ðas if it

wereÑ a site - specific project. The letter concluded by saying

that no further ÐpackagesÑ would be issued until the matter was

resolved, and that if necessary, Mr. Cleaton wo uld Ðparticipate

in a peer review.Ñ

20. The construction documents that had been given to

Coody appeared to be a master design manual to the Deland

building officials, FEMC staff, and later to members of the PCP.

21. Mr. Joseph Berryman is a licensed professional

e ngineer experienced in the design and analysis of commercial

and industrial structures.

22. Mr. Berryman has never supervised construction or

conducted a final inspection of an aluminum patio shelter or

screen enclosure .

23. Mr. Berryman is an expert in structural engineering.

He was well known to the members of the PCP as a consulting

expert for the Board. He had rendered expert opinions to the

Board in several recent license discipline proceedings involving

aluminum screen enclosure s.

24. At Ms. AndersonÓs request, Mr. Berryman reviewed the

e - mail correspondence from Mr. Crum to FEMC, the correspondence

from Mr. Crum to Coody, the January 26, 2011, authorization

letter from Mr. Cleaton for Coody, the two - page permit

application , and a one - page drawing showing the framing plan and

elevations for the Birchmont screen enclosure.

25. In a letter to Mr. Rimes dated April 15, 2011,

Mr. Berryman concluded that the statements in the Coody

authorization letter were consistent with the definit ion of

master design manual system as addressed by section 489.113(9).

He further concluded that if Mr. Cleaton wanted to continue to

utilize a master design manual, he would need to obtain peer

review and comply with the other requirements set forth in t hat

statute.

26. On or about May 31, 2011, Mr. Crum sent an e - mail to

Ms. Anderson with an attached copy of an unsigned Uniform

Complaint Form, which is utilized by the Board to document

complaints. The e - mail stated that Mr. Crum thought he had sent

the complaint form earlier, but then realized he had not done

so. The e - mail asked if FEMC needed him to fax another copy of

the Uniform Complaint Form with his signature on it. The

complaint form outlined Mr. Cru mÓs earlier allegation that

Mr. Cleaton was providing a master design manual for aluminum

structu res that did not meet the third - party peer review or

t raining requirements of section 489.133(9), Florida Statutes.

27. There was no evidence that FEMC ever contacted

Mr. Crum in response to his inquiry about the need for another

copy of the complaint form with his signature. Mr. Crum never

provided a signed copy of his complaint to FEMC.

28. There was no e vidence of any prejudice to Mr. Cleaton

resulting from the fact that the complaint was not signed .

29. In light of Mr. CleatonÓs April 11, 2011,

representation to FEMC that the documents were not being

utilized as a master design manual, FEMC decided to Ðtake him at

his wordÑ and consider the documents to have been prepared as

signed and sealed engi neering for a site - specific project.

30. FEMC staff decided to investigate the engineering in

the documents that had been provided to them, and asked

Mr. Berryman to review them as part of the investigation. FEMC

had no reasonable cause to believe that t here was anything wrong

with the engineering contained in the documents for the screen

enclosure. Ms. Anderson did testify that , in her experience , a

high percentage of construction plans for aluminum screen

enclosures contained engineering flaws, but she was not familiar

with either Mr. Cleaton or the Birchmont structure and did not

have any information suggesting that these particular

engine ering documents were deficient.

31. FEMCÓs decision to investigate the engineering

contained in the documents that had been given to them in

connection with the complaint did not initiate a new

investigation, but instead continued the investigation that had

already begun, albeit taking that investigation in a new

direction.

32. Mr. Cleaton was not informed by FEMC o f this change in

the direction of the investigation.

33. Mr. Berryman completed calculations for his review of

the construction plans for the screen enclosure prior to

June 20, 2011, but he did not provide a copy of those

calculations with his report.

34. In a letter ad dressed to Mr. Rimes dated June 20,

2011, Mr. Berryman identified various omissions of required

information as well as flaws in the engineering designs and

design assumptions contained in the construction documents,

including the identifica tion of several overstressed elements

and violations of the Florida Building Code (FBC or the Code ) .

Mr. Berryman concluded that, ÐAs indicated above, Mr. Cleaton

has failed to utilize due care in performing in an engineering

capacity and has failed to ha ve due regard for acceptable

standards of engineering principles.Ñ

35. The June 20, 2011 , report from Mr. Berryman was a

competently prepared and adequately sourced engineering opinion.

36. Any procedural errors or irregularities in the

investigative st age did not impair PetitionerÓs defense.

37. Based substantially upon Mr. BerrymanÓs report, a

proposed Administrative Complaint was prepared. Four counts

alleged that the engineering documents for the Birchmont

structure failed to include required infor mation (counts 4A

through 4D); three counts alleged that specific elements used in

the Birchmont structur e were overstressed at 2007 FBC prescribed

design loading (counts 4E through 4G), alleging, for example,

that the Ð2x5 SMB roof beam elements of the su bject structure

are significantly overstressed at 2007 FBC (Table 2002.4)

prescribed design loadingÑ; four counts alleged elements in

column and beam schedules that were not utilized for the

Birchmont structure were overstressed at 2007 F BC prescribed

desi gn loading (counts 4H, 4J, 4L, and 4M); two counts alleged

that elements contained in column and beam schedules, only some

of which were used in the Birchmont Structure, were overstressed

at 2007 FBC prescribed design loading (counts 4I and 4K); and

the tw o remaining counts (4N and 4O) contained generic

allegations that the elements of the screen enclosure and the

elements in the span tables were not engineered in accordance

with the strength req uirements of the 2007 FBC.

38. On September 20, 2011, the PCP of the Board of

Professional Engineers fou nd probable cause to charge

Mr. Cleaton with violating section 471.033(l)(g), Florida

Statutes, by being negligent in the practice of engineering.

39. The transcript of the probable cause proceeding shows

that Mr . Rimes summarized the case for the members of the PCP

and that they did not discuss the allegations prior to their

vote finding probable cause. Mr. Rimes incorrectly stated that

FEMC had received a complaint with regard to the qua lity of the

work.

40. E ach member indicated that he had thoroughly read and

reviewed the materials provided prior to the meeting. The

transcript also shows some discussion of the facts of the case,

but only after the vote. Mr. RebaneÓs questions showed that he

was aware that a t different times during the investigation ,

issues regarding both master design omissions and deficient

engineering in the signed and sealed engineering documents had

been considered. Mr. HahnÓs comments showed he was aware that

Petitioner had asserted th at the drawings were signed and sealed

documents for the Birchmont structure and even indicated that he

believed Petitioner Ðmade things worse for himselfÑ by doing so.

The members of the PCP were generally familiar with the

extensive materials that were provided to them, the details of

the case, and Mr. BerrymanÓs opinion.

41. The PCP had previously been provided copies of the

Issue Analysis and Staff Recommendation; the Investigative

Report; the letter from Mr. Crum to Coody regarding the plans

for the Birchmont screen enclosure ; several e - mails between

Ms. Anderson and others, includi ng Mr. Crum, Mr. Rimes, and

Mr. Cleaton; the authoriz ation letter for Coody from

Mr. Cleaton; the Application for Permit submitted for the

Birchmont structure to the City o f Deland; the engineering

drawings for the st ructure; the letter dated March 31, 2011,

from Mr. Cleaton to Ms. Anderson in response to th e original

complaint; the April 15, 2011, opinion letter from Mr. Berryman

to Mr. Rimes, but without the second page; t he unsigned Uniform

Complaint Form submit ted by Mr. Crum on or about May 31, 2011;

the second opinion letter from Mr. Be rryman to Mr. Rimes, dated

June 20, 2011; and a draft of the proposed Administrative

Complaint.

42. The mis sing second page from the Ap ril 15, 2011,

opinion letter continued a list of the documents that had been

reviewed by Mr. Berryman, set fo rth the allegations made by

Mr. Crum, and contained the following statement: ÐThe problem at

the building department was apparently resolved by the submittal

of signed and sealed site - specific eng ineering for the project

by Mr. Cleaton.Ñ The m issing page did not contain

Mr. BerrymanÓs opinion and contained no information

contradictory to the conclusions in the opinion letter.

43. While Petitioner argues that the above - quoted sentence

dispelled Ðany scintilla of justificationÑ for the

investigation, this conclusion is rejected. In fact,

notwithstanding Mr. CleatonÓs statement to the building

department that the documentation was not to be consider ed a

master design manual, the opinion letter goes on to conclude

that this statement of Mr. Cleaton Ós was inconsistent with other

statements he made and that the documents fail to inclu de

elements required by section 489.113(9).

44. The absence of the m issing page was not a material

flaw in the probable cause proceedings. First, the two pages

that were provided to the PCP accurately represented the entire

opi nion letter. Second, the April 15, 2011, opinion letter

addressed Mr. CrumÓs original allegatio ns as to the failure to

comply with the requirements of section 489.113(9), relating to

master design manuals, which was not the ultimate basis for the

Administrative Complaint. It was Mr. BerrymanÓs subsequent

opinion lett er dated June 20, 2011, also pro vided to the PCP,

which provided the basis for the Administrative Complaint.

45. Mr. BerrymanÓs calculations were not included among

the materials given to the PCP.

46. An Administrative Complaint reflecting the

Septemb er 20, 2011, findings of the PCP wa s issued on

September 30, 2011, and w as subsequently served upon

Mr. Cleaton.

47. The Administrative Complaint was styled ÐFlorida Board

of Professional Engineers v. Frank Cleaton, P.E.Ñ It was

accompanied by an Election of Rights form, headed with ÐStat e of

Florida, Florida Engineers Management Corporation,Ñ advising

Mr. Cleaton of his right to request an informal or formal

hearing within 21 days of receipt of the Administrative

Complaint.

48. The complaint was filed by FEMC on behalf of the

Board.

49. The Department of Business and Professional Regulation

( the Department ) played no active role in the investigation or

prosecution of the case.

50. FEMC did not notify the Deland Building Department or

the owner of the screen enclosure of its finding of " 17 serious

material deficiencies."

51. Pursuant to Mr. CleatonÓs demand , an evidentiary

hearing under s ection s 120.569 and 120.57(1), Florida Statutes,

was sch eduled to be heard on September 25, 2012.

52. On or about March 2, 2012, Mr. Berryman submitted to

FEMC the calculations he had performed prior to his June 20,

2011, opinion letter to FEMC, so that they could provided to

Petitioner.

53. Mr. CleatonÓs expert, Mr. Thomas Campbell, submitted a

report dated September 12, 2012, which was provided to FEM C the

following day. Mr. Campbell concluded that the Birchmont scree n

enclosure plans met the ÐevolvingÑ FBC (2007 - 2010) 2/ and the

Aluminum Design Manual (2005). He concluded the screen

enclosure was adequately built and safe. His report asserted

that a ny errors in the engineering tables that were not actually

used in constructing the Birchmont structure should be

considered irrelevant. The report stated that all maximum

member moments were Ðwell below allowableÑ and all member

interaction ratios (axial and bending) were well below 1.0, with

one exception. The 2 x 2 section exc eeded that ratio by less

than 9 percent and was in tension. The report concluded that

this was well within the acceptable range for the conservative

evaluation that was conducted .

54. Mr. Berryman reviewed Mr. CampbellÓs report and

concluded that his analysis failed to determine allowable

stresses for the aluminum framing members in accordance with the

2005 Aluminum Design Manual, as was requi red by the FBC .

Mr. Berryman found t hat Mr. CampbellÓs opinions did not comply

with accepted engineering practice and that his analyses were

unreliable and replete with errors.

55. However, Mr. Berryman also examined some load test

results for self - mating beams that had been prepared for

ÐA luminum Enclosures Suppliers CouncilÑ and ÐTown and Country

Industries, Inc.,Ñ aluminum manufacturing companies in the State

of Florida , which had been supplied along with Mr. CampbellÓs

opinion. These test results were proprietary information that

was no t available to Mr. Be rryman prior to Mr. CampbellÓs

r eport. While these data were incomplete and had not been

verified by industry professionals and regulatory authorities,

Mr. Berryman concluded that they suggested at least the

possibility of an alternat e method of determining allowable

stresses that might be help ful to Mr. CleatonÓs designs.

Although the data in the test reports diverged from the design

methodology described as acceptable in the FBC , the Code allows

some departures from these standards when an alternative

analysis has been reasonably justified. Mr. Berryman therefore

recommended that many of the charges in the Administrative

Complaint should not be pursued until the proprietary data could

be validated or invalidated.

56. On September 2 1, 2012, Respondent filed an unopposed

Motion to Cancel Hearing, Relinquish Jurisdiction and Close

File. An Order Cl osing File was issued by the administrative

law judge on September 21, 2012.

57. On September 27, 2012, Respondent filed a Motion to

Dismi ss Administrative Complaint and Close File with the Board.

Petitioner did not resp ond to the Motion. On November 7, 2012,

the Board entered its Final Order dismissing the Administrative

Complaint filed against Petitioner.

58. Mr. Cleaton is a prevailing small business part y

within the meaning of section 57.111, Florida Statutes.

59. On November 9, 2012, Petitioner filed a Motion for

Attorney Fees and Costs with DOAH seeking attorneys' fees and

c osts under the provisions of section 57.111.

60. Mr. Clea ton incurred attorneysÓ fees and costs in

defending his license against the Administrative Complaint

initiated by the Board. AttorneysÓ fees in the amounts of

$11,456.25 for Sheppard, White , and Kachergus, P.A. , and

$30,247.50 for McCabe Law Group, P.A. , are reasonable.

61. Mr. Cleaton retained the services of Mr. Campbell to

be his expert witness. Mr. Campbell in turn enlisted the

services of NuVision, an engineering company he owns, to assist

in preparations for his testimony. Mr. Campbell is an exper t in

structural engineering. Mr. Campbell and NuVision are based in

Pennsylvania.

62. The claimed e xpert witness fees of $48,037 are

excessive. This amount reflected some 176 hours spent by three

engineers, 16 hours for their administrative support, and $22

for travel expended at NuVision, as well as an additional 65

hours of time spent by Mr. Campbell, 30 hours of administrative

support for him, and $715 in travel spent by Mr. CampbellÓs

firm, TEC Enterprises. Testimony offered by Mr. Campbell

indicate d that the claimed hours represented only about half of

those actually expended, and that none of the claimed costs were

for time spent in learning specific requirements unique to

Florida, such as the FBC .

63. A reasonable cost for PetitionerÓs expert wit ness was

$15,000. Mr. Berryman credibly testified that 100 hours of time

would have been ample for the engineering work; that $250 per

hour for a supervising engineer, $200 per hour for a senior

engineer, and no more than $100 per hour for an entry - level

engineer were reasonable rates; and that senior engineers were

not required to do the necessary calculations. Allocating 25

hours to Mr. Campbell as supervising engineer and 75 hours for

entry - level engineers to make the calculations, and applying the

hou rly rates mentioned in this paragraph would be reasonable.

Adding another 5 hours of Mr. CampbellÓs time at the supervising

engineer rate for the final preparation of his testimony and

actual hours at the deposition is reasonable.

64. No special circumst ances exist that would make an

award of fees and costs unjust.

65. The documentation provided to the PCP was not

misleading, was not missing critical information, and contained

required allegations of fact. The PCPÓs finding was supported

by expert opini on and had a solid basis in law and fact.

66. The PCPÓs actions in directing the filing of an

Administrative Complaint were substantially justified.

CONCLUSIONS OF LAW

67. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

case pursuant to sections 57.111(4), 120.569, and 120.57(1),

Florida Statutes (2012). 3/

68. Respondent is charged with regulating the practice o f

engineering pursuant to chapter 471, Florida Statutes.

69. Pursuant to section 471 .038, Florida Statutes, FEMC is

charged with providing administrative, investigative, and

prosecutorial services to Respondent in accordance with the

provisions of chapt ers 455 and 471.

70. In lig ht of the provisions of section 471.038, the

Department pla ys no active role in the i nvestigation or

prosecution of professional e ngineers, and is only a no minal

party in this proceeding.

71. Petitioner is a professional engineer licensed under

chapter 471 who has incurred attorneysÓ fees and costs in

defending his license again st an Administrative Complaint.

72. Section 57.111, denominated the Florida Equal Access

to Justice Act (FEAJA) , is designed to offset expenses incurred

by a small business successfully defending against Ðunreasonable

governmental actionÑ in an administrative proceeding. DepÓt of

HRS v. S. Beach Pharmacy , 635 So. 2d 117 , 118 n.1 (Fla. 1st DCA

1994).

73. Section 57.111(4)(a) provides:

Unless otherwise provided by law, an award

of attorney's fees and costs shall be made

to a prevailing sma ll business party in any

adjudicatory or administrative proceeding

pursuant to chapter 120 initiated by a state

agency, unless the actions of the agency

were substantially justified or special

circumstances exist which would make the

award unjust.

Petitio nerÓs Burden

74. Initially, it is PetitionerÓs burden under the statute

to show that he is a small business and is the prevailing party.

Helmy v. Dep't of Bus. & Prof'l Reg. , 707 So. 2d 366, 368 (Fla.

1st DCA 1998); DepÓt of ProfÓl. Reg. v. Toledo Realty , Inc. ,

549 So. 2d 715, 717 (Fla. 1st DCA 1989).

75. The parties have stipulated that Petitioner is a

prevailing small business pa rty. Section 57.111(3)(c)3.

provides in relevant part that a small business party is a

Ðprevailing small business partyÑ whe n the state agency has

sought a voluntary dismissal of its complaint. The parties did

not stipulate as to the state agency involved, and this was one

of many disputes in pre - hearing pleadings.

76. Section 57.111(3)(f) provides that the term Ðstate

agency Ñ has t he meaning described in section 120.52(1).

77. The Florida Board of Professional Engineers is an

agency within the meaning of section 120.52(1)(b), which

includes each Ðgovernmental entityÑ in Florida having statewide

jurisdiction. Dep't of Prof'l Reg. v. Le Baron , 443 So. 2d 225

(Fla. 1st DCA 1983)(holding Board of Dentistr y was agency head

under chapter 120 for purposes of issuing order of dismissal in

license disciplinary proceeding). As an agency under

section 120.52, the Florida Board of Engi neers is al so a state

agency under section 57.111(3)(f).

78. Section 57.111(3)(b) provides in relevant part that

the phrase Ðinitiated by a state agencyÑ means that the state

agency filed a request for an administrative hearing , or was

required by law or rule to advise a small business party of a

clear point of entry after some recognizable event in the

investigatory or other free - form proceeding of the agency.

79. An Administrative Complaint styled ÐFlorida Board of

Professional Engineers v. Frank Cleato n, P.E.,Ñ was served on

Petitioner shortly after the finding of probable cause. It

advised Petitioner of his right to request an informal or formal

hearing within 21 days of receipt. Petitioner was required to

be advised of such a point of entry in to adm inistrative

proceedings by Florida Administrative Code Rule 28 - 106.111. The

Administrative Complaint was referred to DOAH on January 17,

2012.

80. The relationship between FEMC and the Board is

unusual, and is not set forth in great detail in the sta tut es.

The language of section 471.038(3) does make clear that FEMC is

not itself a state agency, but is a nonprofit corporation

primarily actin g as an instrumentality of the S tate in providing

Ðprosecutorial services,Ñ among others, to the Board. It is the

Board which exercises the power of the State to regulate the

practice of engineering and which directs 4/ FEMC to prosecute.

Under these circumstances, the Board is the state agency which

ÐinitiatedÑ the Administrative Complaint against Petitione r

within the meaning of section 57.111(3).

81. PetitionerÓs application for attorneysÓ fees and costs

was timely. Section 57.111(4)(b)2. directs that application be

made within 60 days after the date the small business party

prevails. DepÓt of HRS v. S. Beach Ph armacy , 635 So. 2d 117,

121 (Fla. 1st DCA 1994). Petitioner became the prevailing s mall

business party on November 7, 2012, and filed his Motion for

Attorney Fees and Costs on November 9, 2012.

Co mpensability of Fees and Costs

82. It is Petitioner's burd en to show that attorneysÓ fees

and costs claimed are compensable and in what amount. Lewis v.

Thunderbird Manor, Inc. , 60 So. 3d 1182, 1183 (Fla. 2d DCA

2011); Nasser v. Nasser , 975 So. 2d 531, 532 (Fla. 4th DCA

2008).

83. Respondent disputes that Petit ioner is entitled to any

attorney sÓ fees and costs under section 57.111, as discussed

below. Should attorneysÓ fees be authorized, however,

Respondent does not contest the reasonableness of the amount of

$11,456.25 for Sheppard, White , and Kachergus, P.A. , or

$30,247 .50 for McCabe Law Group, P.A.

84. Respondent does object to the reasonableness of the

$18,615 expert witness costs for Mr. Campbell, and the $29,422

cl aimed for NuVisionÓs services.

85. The Florida Supreme Court has adopted Statewide

Uniform Guidelines for Taxation of Costs in Civ il Actions,

effective January 1, 2006. In re Amendments to Unif. Guidelines

for Taxation of Costs , 915 So. 2d 612 (Fla. 2005). The parties

stipulated to the applicability of the guidelines in this

section 57.111 pr oceeding. The guidelines are advisory only,

however, and there is broad discretion as to the taxation of

costs in any particular proceeding. Winter Park Imps., Inc. v.

JM Family Enters. , 77 So. 3d 227, 230 (Fla. 5th DCA 2011);

Madison v. Midland Nat'l Li fe Ins. Co. , 648 So. 2d 1226, 1228

(Fla. 4th DCA 1995) (deviation appropriate depending on facts of

the case as justice may require).

86. The guidelines do not specify factors that should be

considered when determining a reasonable fee for deposition or

t rial testimony. They do not necessarily restrict expertsÓ fees

to time actually spent testifying. Winter Park Imps., Inc. v.

JM Family Enters. , 77 So. 3d 227, 231 (Fla. 5th DCA 2011). In

the instant case, where review of not only PetitionerÓs

engineerin g work product but also the report of RespondentÓs

expert witness was required, it was appropriate to include

adequate pre paration time.

87. The time PetitionerÓs expert reasonably spent in

preparing for deposition, including time necessary to formulate

h is opinion by investigating, testing, researching, and

conferring with other professionals, is taxable as part of the

expertÓs deposition fee. Cf . Brascom v. Hillsborough C nty .

Sheriff's Office , 65 So. 3d 619 (Fla. 1st DCA 2011)(new

guidelines did not pro hibit award for expert's time expended in

pre - trial conference with counsel). Petitioner is required to

provide evidence of a reasonable hourly rate and number of hours

reasonably expended, just as in the case of attorney s Ó fees.

Paravant, Inc. v. Langfo rd , 79 So. 3d 75 (Fla. 5th DCA 2011);

Elder v. Islam , 869 So. 2d 600, 602 - 03 (Fla. 5th DCA 2004).

88. The Florida Supreme Court has cautioned that

discretion as to costs should be exercised "in a manner that is

consistent with the policy of reducing overa ll costs of

litigation and of keeping such costs as low as justice will

permit." Winter Park Imps., Inc. v. JM Family Enters. ,

77 So. 3d 227, 232 (Fla. 5th DCA 2011)(quoting In re Amendments

to Unif. Guidelines for Taxation of Costs , 915 So. 2d at 614,

61 6 (Fla. 2005)). In light of this admonition and the credible

testimony of RespondentÓs expert that 100 hours would have been

ample to prepare the engineering report, the claimed e xpert

witness fees of $48,037 are excessive. Reasonable costs for

expert wi tness preparation and testimony would include 30 hours

for a supervising engineer at $250 per hour and 75 hours for an

entry - level engineer at $100 per hour, for a total of $15,000.

Petitioner failed to prove any greater costs were reasonable or

necessary to prepare his expert for deposition.

89. Section 57.111(4)(d)2. provides that n o award of

attorneysÓ fees and costs for an action initiated by a state

agency shall exceed $50,000.

90. Petitioner established a prima facie case of

entitlement to attorn eysÓ fees and costs as a prevailing small

business party.

RespondentÓs Burden

91. Respondent may avoid an award of fees and costs if it

proves that special circumstances exist which would make an

award unjust or that its actions were "substantially justif i ed"

as that term is defined in section 57.111(3)(e). "It is the

agency which must affirmatively raise and prove the exception."

Helmy v. DepÓt of Bus. & ProfÓl Reg. , 707 So. 2d 366, 368 (Fla.

1st DCA 1998).

92. Respondent does not suggest, and no evide nce was

presented to show, that special circumstances exist that would

make an award of fees and costs unjust.

93. In order to prevail due to "substantially justified "

actions, Respondent must prove that it had Ða solid though not

necessarily correct basi s in fact and law for the position it

took in the action." Casa Febe Ret. Home, Inc. v. A g. for

Health Care Admin , 892 So. 2d 1103, 1106 (Fla. 2d DCA 2004);

Fish v. DepÓt of Health, Bd of Dentistry , 825 So. 2d 421 (Fla.

4th DCA 2002).

94. An agencyÓs act ion is not Ðsubstantially justifiedÑ

simply because it is not frivolous; it must have a stronger

foundation. DepÓt of HRS v. S.G. , 613 So. 2d 1380, 1386 (Fla.

1st DCA 1993). In Dep artmen t of Ins urance v. Fl orida Bankers

Ass ociatio n , 764 So. 2d 660 (Fl a. 1st DCA 2000), it was stated:

Ð[I]n terms of Florida law, the Òsubstantially justifiedÓ

standard falls somewhere between the no justic iable issue

standard of section 57.105, Florida Statutes (1991), and an

automatic award of fees to a prevailing party.Ñ

In vestigatory Process

95. Before turning to the information that was before the

PCP, PetitionerÓs contentions that the subsequent finding of

probable cause had no solid basis in law because of FEMCÓs lack

of authority or flaws in the investigatory process w ill be

considered. First, Petitioner contends that FEMC has no

authority to determine legal sufficiency. FEMCÓs citation to

its statutory authority is persuasive on this point, however.

A finding that a complaint is legally sufficient is a

preliminary s tep in the investigatory process. Wood v. Bd. of

P rofÓl EngÓrs and DepÓt of Bus. & ProfÓl Reg. , Cas e No. 12 -

2900RU (Fla. DOAH Feb. 20, 2013)(setting forth legislative

history of the statutes governing the relationship between FEMC

and FBPE, outlining the steps of the investigatory process, and

finding that the power to determine legal sufficiency was

delegated to FEMC as part of the power to investigate).

Section 471.038(3) vests FEMC with the power and responsibility

to provide administrative, investigat ive, and prosecutorial

services to Respondent Ðin accordance with the provisions of

chapter 455Ñ and chapter 471. Included among these powers and

responsibilities are those usually performed by the Department

pursuant to section 455.225, including the aut hority to make

determinations as to the legal sufficiency of complaints and to

initiate investiga tions.

96. Any further contention by Petitioner that the statute

vesting FEMC with power to make legal sufficiency determinations

constitutes an unconstitutio nal delegation of a sovereign

function to a private entity is a question for the courts, not

DOAH. The Administrative Procedure Act does not purport to

confer authority on administrative law judges to invalidate

statutes. Gulf Pines Mem Ól Park v. Oaklawn Mem Ól Park , 361

So. 2d 695, 699 (Fla. 1978); Comm. Workers, Local 3170 v. City

of Gainesville , 697 So. 2d 167, 170 (Fla. 1st DCA 1997).

97. Second, Petitioner argues that the statutory criteria

necessary for FEMC to undertake an investigation were not me t.

Specifically, Petitioner asserts that the complaint was never

signed, and that there was therefore no basis for the

investigation which preceded and supported the finding of

probable cause. Petitioner showed that the complaint filed by

Mr. Crum was ne ver signed, but PetitionerÓs contention that this

fact vitiates the finding of probable cause is not persuasive.

98. As noted earlier, FEMCÓs authority to initiate

investigations of professional engineers parallels the authority

of the Department with res pect to professions regulated by other

boards. Section 455.225(1)(a) provides:

The department, for the boards under its

jurisdiction, shall cause to be investigated

any complaint that is filed before it if the

complaint is in writing, signed by the

compl ainant, and legally sufficient. A

complaint is legally sufficient if it

contains ultimate facts that show that a

violation of this chapter, of any of the

practice acts relating to the professions

regulated by the department, or of any rule

adopted by the department or a regulatory

board in the department has occurred. In

order to determine legal sufficiency, the

department may require supporting

information or documentation. The

department may investigate, and the

department or the appropriate board may take

appropriate final action on, a complaint

even though the original complainant

withdraws it or otherwise indicates a desire

not to cause the complaint to be

investigated or prosecuted to completion.

The department may investigate an anonymous

complain t if the complaint is in writing and

is legally sufficient, if the alleged

violation of law or rules is substantial,

and if the department has reason to believe,

after preliminary inquiry, that the

violations alleged in the complaint are

true. The departm ent may investigate a

complaint made by a confidential informant

if the complaint is legally sufficient, if

the alleged violation of law or rule is

substantial, and if the department has

reason to believe, after preliminary

inquiry, that the allegations of the

complainant are true. The department may

initiate an investigation if it has

reasonable cause to believe that a licensee

or a group of licensees has violated a

Florida statute, a rule of the department,

or a rule of a board.

99. Petitioner focuses on the first sentence above,

concluding that because the complaint from Mr. Crum was not

signed, FEMC had no authority to investigate. Yet further

examination of this statute reveals multiple bases for beginning

an investigation, and purposeful use of Ðsh allÑ and Ðmay.Ñ The

statute requires the Department (and therefore FEMC) to

investigate written, signed, legally sufficient complaints. It

authorizes, but does not require, investigation of certain other

complaints that are withdrawn, made anonymously, o r made by

confidential informants. Finally, and most broad ly, the statute

authorizes the D epartment to initiate an investigation whenever

there is reasonable cause to believe that a statute or rule has

been violated. This last broad category does not req uire a

formal complaint at all, so long as there is reasonable cause.

Cf . Mercy Hosp. v. DepÓt of ProfÓl Reg., Bd. of Med. Exam Ór , 467

So. 2d 1058, 1059 (Fla. 3d DCA 1985)(investigation begun upon

notification under section 458.337(1)(a) that hospital had

suspended staff privileges of physicians). While a formal

complaint may be usual, FEMC is not helpless to proceed in the

absence of formal complaint where reasonable cause exists.

100. Even if a formal complaint were required, Mr. Crum ,

whose responsibi lities as a building o fficial included

construction permit review and approval , sent the e - mail from

his City of Deland account . Under these circumstances, there is

no indication that a procedural failure to sign the complaint

prejudiced Petitioner in any way or would be anything but a

harmless error. Since a formal complaint was not actually

required, communication from a municipal building o fficial

alleging facts that would constitute violations of a Florida

Statute, supported by copies of the documents which had been

filed, provided reasonable cause for an investigation.

101. Third, Petitioner asserts that the investigation was

fatally flawed because FEMC, after preliminary inquiry into the

original complaint made by Mr. Crum, d etermined not to pursue

it, and therefore needed reasonable cause to expand the

investigation into any other areas. Petitioner responded to the

original complaint by indicating that the package provided to

Coody was not to be considered a Ðmaster design manual,Ñ but was

instead signed and sealed engineering for a site - specific

project. Petitioner showed that this response w as accepted by

FEMC. Since Mr. CrumÓs complaint concerned procedural

requirements for master design manuals, and FEMC had no

information suggesting that the engineering involved was itself

deficient, Petitioner argues that any further actions of

Respondent were nothing more than a Ðfishing expeditionÑ and

that the investigation should have been closed.

102. On this point, Respondent cites Dep artmen t of

Ins ur ance and Treasurer v. Bankers Insurance Co mpany , 694 So. 2d

70, 73 (Fla. 1st DCA 1997), arguing that an agencyÓs

investigative decisions should be upheld Ðif the inquiry is

within the authority of the agency, the demand is not too

indefinite and the inform ation sought is reasonably relevant.Ñ

However, that case bears only a slight resemblance to the

present one. It involved a statute granting the Department of

Insurance power to Ðconduct such investigations into insurance

matters, in addition to investiga tions expressly authorized, as

it may deem proper to determine whether any person has violated

any provision of this code.Ñ The courtÓs conclusions there --

that no violation of the Insurance Code need be alleged as a

prerequisite to investigation, and th at the agencyÓs power could

be compared to that of a grand jury -- were expressly predicated

on that broad statutory grant. The argument that FEMC has

similarly unrestricted investigatory authority is rejected as

being cont rary to the language of section 455.225.

1 03. On the other hand, section 455.225 is al so quite

different from section 106.25, Florida Statutes, pertaining to

the Florida Elections Commission, which was also cited by

Respondent. That statute expressly confines the Election

CommissionÓs investigative authority to only those alleged

violations contained within a complaint. Jennings v. Fla.

Elections CommÓn , 932 So. 2d 609 (Fla. 2d DCA 2006)(charges

filed following complaint, but not specifically alleged in it,

dismissed based upon subsequ ent enactment of statute restricting

CommissionÓs jurisdiction to those violations alleged).

104. Whether charges of an unwarranted Ðfishing

expeditionÑ might pre vail under other circumstances -- where

FEMCÓs change in investigatory direction involved the

enforcement of ne w subpoenas, for example -- is a question for

another day. In the instant case, FEMC did not even seek

additional information. It merely re - examined information

already provided to it as part of the original complaint.

105. Further, FE MCÓs viewing of this information in a

different light was prompted by PetitionerÓs own response,

provided to FEMC as part of the investigation, that his

engineering was Ðnot to be considered as a master design manualÑ

but was instead a Ðsigned and sealed d rawing.Ñ However

disingenuous this response, in light of his other statements and

his actions to immediately change the character of the documents

based upon Mr. CrumÓs inquiry, if Petitioner now claimed to be

the engineer of record of site - specific drawi ngs, that altered

his responsibilities and reasonably raised questions as to his

compliance with statutes other than 489.113(9). It was not

unreasonable or beyond its statutory authority for the Board to

investigate all violations which reasonably arose f rom facts

that the originally filed complaint and PetitionerÓs response

had already put before it.

106. Fourth, Petitioner suggests that even if FEMC did

have authority to redirect the investigation after receiving

PetitionerÓs response to the original co mplaint, it was required

to inform him of any new allegations before bri nging his case

before the PCP.

107. Section 455.225(1)(b) provides:

When an investigation of any subject is

undertaken, the department shall promptly

furnish to the subject or the su bjectÓs

attorney a copy of the complaint or document

that resulted in the initiation of the

investigation. The subject may submit a

written response to the information

contained in such complaint or document

within 20 days after service to the subject

of the complaint or document. The subjectÓs

written response shall be considered by the

probable cause panel. The right to respond

does not prohibit the issuance of a summary

emergency order if necessary to protect the

public. However, if the secretary, or the

secretaryÓs designee, and the chair of the

respective board or the chair of its

probable cause panel agree in writing that

such notification would be detrimental to

the investigation, the department may

withhold notification. The department may

condu ct an investigation without

notification to any subject if the act under

investigation is a criminal offense.

108. Section 455.225(1)(b) thus does not give the subject

of an investigation the right to be informed of each new

development or change in scop e of the investigation, but only to

be provided a copy of the complaint or document which resulted

in the initiation of the investigation. FEMC did this. Neither

can this statutory opportunity to respond to the initiating

document be expanded into a full - blown right to contest the

allegations at any point prior to the hearing subsequently to be

afforded pursuant to chapter 120. W. Frank Wells Nursing Home

v. Ag. for Health Care Admin , 979 So. 2d 339, 341 (Fla. 1st DCA

2008)(parties not entitled to hearin g to settle issues of fact

in agency's investigation); DepÓt of ProfÓl Reg., Div. of Real

Estate v. Toledo Realty , 549 So. 2d 715, 719 (Fla. 1st DCA

1989)(PCP process not subject to section 120.57, which is

applicable only after the complaint has been file d).

109. Petitioner did have a statutory opportunity to make a

written request to inspect, or make a copy of, the investigative

file once it was complete, and was adv ised of this right in the

March 22, 2011, letter from Ms. Anderson. Section 455.225(10)

provides in relevant part:

Upon completion of the investigation and

pursuant to a written request by the

subject, the department shall provide the

subject an opportunity to inspect the

investigative file or, at the subjectÓs

expense, forward to the subject a copy of

the investigative file. The subject may

file a written response to the information

contained in the investigative file.

There was no evidence that Petitioner ever availed himself of

this opportunity to review the completed investigative file o r

respond to it.

110. Even assuming that Petitioner had been able to

demonstrate error on the part of FEMC in opening the

investigation without a signed complaint, in expanding the scope

of the investigation, or in failing to advise Petitioner of its

new direction, there was no evidence that any of these actions

impaired PetitionerÓs defense. Procedural failures in the

investigatory stage must be considered harmless error in the

absence of evidence that they impaired the fairness of the

proceedings or the correctness of the action. There was no such

impairment here. Carter v. DepÓt of ProfÓl Reg. , 633 So. 2d 3,

6 (Fla. 1994)(violation of p rocedural timeframes of

section 455.225 was not jurisdictional; should be analyzed under

harmless error rule); Carrow v. DepÓt of ProfÓl Reg. , 453 So. 2d

842 (Fla. 1st DCA 1984)(failure to inform doctor of nature of

complaint against him pursuant to section 455.225(1) was subject

to harmless error rule); Beckum v. State , 427 So. 2d 276, 277

(Fla. 1st DCA 1983)(failure to record PCP proceedings was

procedural error governed by 120.68(8) review, and was not

jurisdictional in nature).

Probable Cause Panel

111. As noted earlier, Respondent must prove that it had a

solid basis in both fact and law for the position it took in the

action. The information before the PCP will be considered in

light of each of these related requirements.

112. In determining whether there was substantial

justification for filing an Administrative Complaint against a

licensee, the focus is upon the facts that were before the PCP.

Fish v. DepÓt of Health, Bd. of Dentistry , 825 So. 2d 421, 423

(Fla. 4th DCA 2002); DepÓt of ProfÓl Reg. v. Toledo Realty , 549

So. 2d 715, 716 (Fla. 1st DCA 1989); Kibler v. DepÓt of ProfÓl

Reg. , 418 So. 2d 1081 (Fla. 4th DCA 1982).

113. Petitioner first asse rts that FEMCÓs prosecutor,

Mr. Rimes, provided misinformation to the PCP when he stated

that FEMC had Ðreceived a complaint with regard to the quality

of the work.Ñ The evidence is uncontroverted that the original

co mplaint was concerned with failure to follow statutory

requirements for the use of master design manual engineering.

While Mr. Rimes may have intended his remark in a very general

sense to include failure to meet procedural requirements,

Petitioner is cor rect: the statement was not accurate in

context. The original complaint from Mr. Crum had nothing to do

with the quality of the engineering work, which was the basis

for FEMCÓs recom mended Administrative Complaint. I t was only

later that the investigatio n shifted to consider this, as

discussed earlier. However, this misstatement by Mr. Rimes must

be considered in light of all of the other information that had

been provided to the PCP. The members h ad not only received a

Investigative Report which set fo rth in detail the original

complaint and the course of the investigation which followed ,

but also the e - mails that had passed between Mr. Crum and FEMC,

the letter from Mr. Crum to Cood y, two opinion letters from

Mr. Berryman, and the unsigned Uniform Comp laint Form. It is

concluded that the members of the PCP were well aware of the

nature of the original compl aint and were not misled by

Mr. RimesÓ statement.

114. Petitioner next argues that the information before

the PCP was incomplete because Mr. Berrym anÓs calculations were

not included. However, the panel did hav e Mr. BerrymanÓs letter

of June 20, 2011, which comprehensively reviewed the engineering

drawings. That letter not only set forth his conclusions that

there were omissions in PetitionerÓs con struction documents and

failures to design in accordance with the 2007 F B C, but also

identified the specific omissions and overstressed elements in

great detail. Mr. Berryman was well - known to the members of the

PCP as their consulting expert in structura l engineering. The

calculations themselves were not required.

It is not necessary for the probable cause

panel to go behind the opinions of

consultants hired by the Department, and to

make independently their own examination of

records, duplicating the ev aluation of the

consultant. If they must do so, there is

little purpose in retaining consultants to

review cases and little utility in having

lay memb ers of probable cause panels.

Arias v. DepÓt of ProfÓl Reg., Bd. of Med. Case No. 90 - 3932F

(Fla. DOAH Ju ly 1, 1991 ). See also Kayan v. A g. for Health Care

Admin , Case No. 96 - 2016F (Fla. DOAH Aug. 21, 1996).

115. Petitioner next asserts that Ðwhat the Probable Cause

Panel reviewed was an investigative report that simply stated an

opinion: ÒMr. CleatonÓs wor k product did not meet accept able

standards of practice.ÓÑ But the Investigative Report did not

contain only a bare opinion, it contained specific allegations

of fact in support, asserting, for example, that the Ð2x5 SMB

roof beam elements of the subject structure are significantly

overstressed at 2007 FBC (Table 2002.4) prescribed design

loading.Ñ This assertion, and others contained in the

Investigative Report, is a detailed assertion of fact.

Petitioner contests their accuracy, of course, but this doe s not

change their character as specific allegations of fact

supporting charges of negligence. This report alone may have

been sufficient to support a finding of probable cause. DepÓt

of ProfÓl Reg., Div. of Real Estate v. Toledo Realty, Inc. , 549

So. 2d 715, 719 (Fla. 1st DCA 1989)(section 455.225 procedures

suggest an investigative report may be the most substantial and

relevant evidence necessary in deciding whether probable cause

exists).

116. The PCP also had additional information before it,

includ ing copies of the engineering drawings for the st ructure;

the letter dated March 31 , 2011, from Mr. Cleaton to

Ms. Anderson in response to th e original complaint; the

April 15, 2011, opinion letter from Mr. Berryman to Mr. Rimes,

but without the second pag e; the unsigned Uniform Complaint Form

submit ted by Mr. Crum on or about May 31, 2011; the second

opinion letter from Mr. Be rryman to Mr. Rimes, dated June 20,

2011; and the proposed Administrative Complaint.

117. Petitioner argues next that the PCP did not consider

the materials adequately. It is clear that no matter how

comprehensi ve the materials available to the PCP , if those

materials are not considered, the PCPÓs decision is not

substantially justified. Thompson v. Dep't of Health , 7 So. 3d

1150, 1151 (Fla. 2d DCA 2009)(Ðrubber stamping,Ñ as evidenced by

lack of discussion of facts or issues by probable cause panel

and fact that no panel member noted that seven pages of

materials were obscured, was insufficient). See also Kibler v.

Dep't of Prof'l Reg. , 418 So. 2d 1081, 1084 (Fla. 4th DCA

1982)(determination of probable cause clearly implies the need

for some form of evaluation by the panel).

118. The missing page in the instant case could have been

detected by the members because of the page nu mbers and the flow

of the narrative, but the fact that the Transcript of the

probable cause hearing does not reflect that any member noticed

this is not fatal under the circumstances. The missing page

contained no information important to the recommended charges in

the Administrative Complaint.

119. It is true there was no substantive discussion by the

members of the panel before the vote in the instant case, and

were that the sole evidence of evaluation, Kibler might well

control. However, the PCP trans cript reveals that the members

were in fact generally familiar with the details of the case, as

well as Mr. BerrymanÓs conclusions. While more discussion on

the record would have been desirable, the evidence showed that

the members of the PCP were familia r with the extensive

materials that had been provided to them and that they did not

simply Ðrubber stampÑ the proposed Administrative Complaint

without evaluation.

120. Petitioner next turns to the basis in law for the

boardÓs action. First, it should be noted that the

Administrative Complaint was drafted with precise attention to

each factual conclusion in Mr. BerrymanÓs opinion letter of

June 20, 2011, with citation to appropriate rules and statutes

governing negligence in the practice of engineering. The

complaint did not cite to inapplicable or non - existent law or

rules. Cf . Casa Febe Ret. Home, Inc. v. A g. for Health Care

Admin , 892 So. 2d 1103, 1106 (Fla. 2d DCA 2004).

121. Petitioner next argues that the information presented

to the PCP provided no basis in law for some charges in the

Administrative Complaint that had no application to the

Birchmont str ucture. Petitioner asserts , ÐRespondentÓs expert

did not view the site, did not review the as - builts, and did not

perform any field analysi s of th e alleged defects.Ñ

Mr. CampbellÓs expert report asserted that any er rors in the

engineering tables i n the sealed documents that were not

actually used in constructing the Birchmont structure should be

considered irrelevant. As noted above, it is true th at four

counts (4H, 4J, 4L, and 4M) referred to engineering in column

and beam schedules that were not utilized for the Birchmont

structure. Petitioner argues that even if that engineering was

defective, which Petitioner disputes, charges based on portion s

of the documents unrelated to the Birchmont structure could not

legally constitute negligence.

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

provides in relevant part:

(4) A professional engineer shall not be

negligent in the practice of enginee ring.

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

engineer ing 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.

123. While 4 of the 15 charges in their entirety, and

others in part, had no specific applicability to the Birchmont

structure, only one site - s pecific drawing was submitted. T he

remaining pages of the documents which were signed and sealed

were generic engineering documents with notations. Mr. Berryman

ass erted in his affidavit, which was available to the PCP, that

ÐMr. Cleaton certified compliance of his generic engineering

package (Drawings D1 through D8 & D11) with the 2007 FBC just

next to his seal and signature at the base of each page . . . .Ñ

Respond entÓs position is that Petitioner approved the documents

and the engineering reflected in them, not just that engineering

immediately applicable to the Birchmont structure, and that all

of his work therefore had to conform to acceptable engineering

standar ds.

124. While either position is plausible, neither

Petitioner nor Respondent cite to any Florida cases on the issue

of whether a signed and sealed document containing generic

engineering under the unusual circumstances of this case

constitutes negligen ce.

125. Whether or not these sealed engineering documents

constituted negligence in the practice of engineering need not

be decided here. 5/ The issue is instead whether the PCP had a

reason able basis in law under section 57.111 to issue the

Administrati ve Complaint based upon the inf ormation that was

before it.

126. FEAJA is modeled after the EAJA , 5 U.S.C.

s ection 504. Florida courts have looked to federal law in

interpreting the Florida Act. Gentele v. DepÓt of ProfÓl Reg.,

Bd. of Optometry , 513 So. 2d 672, 673 (Fla. 1st DCA 1987)(citing

federal law for the proposition that a determination to

prosecute which turns on a credibility assessment has a

reasonable basis in law and fact).

127. Federal courts have held that government action is

substantiall y justified when it is premised upon a plausible

interpretation of a statute that has not previously been ruled

upon. See, e.g. , TKB Int'l v. U.S. , 995 F.2d 1460, 1468 (9th

Cir. 1993)(governmentÓs interpretation of tax law supportable

where close question of law involved); Trahan v. Brady , 907 F.2d

1215, 1219 (D.C. Cir. 1990)(position substantially justified

where government applied plausible interpretation of statute in

absence of judicial interpr etation). Even if the BoardÓs

interpretation of the statut e should subsequently turn out to be

incorrect, this would not mean that the action by the PCP was

not substantially justified. Pierce v. Underwood , 487 U.S. 552,

569 ( 1988)(government could take a position that is

substantially justified, yet lose in sub sequent litigation).

128. Petitioner next asserts , as its primary argument that

the charges were not substantially justified, that Mr. CleatonÓs

engineering is sound. Petitioner argues that consideration of

the opposing expert testimony in this case reve als that

engineering experts can disagree, and that FEMC could therefore

never have proved the negligence charges by clear and convincing

evidence. But attorneysÓ fees cases often arise after a hearing

has proved exactly what Petitioner asserts here, that the

government is unable to prove its case. That fact alone is not

sufficient for the award of fees under section 57.111. In fact,

PetitionerÓs assertion that this case is ultimately about

conflicting expert opinions serves only to resolve the

attorneys Ó fees issue here against Petitioner, for the PCP was

entitled to rely upon the credibility of Mr. Berryman.

129. A decision to prosecute based upon the credibility of

an expert opinion has a reasonable basis in fact and law.

See Dep't of Health v. Thoma s , 890 So. 2d 400, 401 (Fla. 1st DCA

2004); Gente le v. Dep't of Prof'l Reg. , Bd. of Optometry , 513

So. 2d 672, 673 (Fla. 1st DCA 1987).

130. The PCP was justified in accepting the opinion of its

expert that the engineering documents failed to include requ ired

information and provided for elements that were significantly

overstressed and out of compliance with the FBC . The opinion

letter identified specific facts concerning the engineering

contained in the documents, which, if proven, demonstrated

faulty e ngineering. If the PCP accepted Mr. BerrymanÓs

engineering opinion, as it was entitled to do, it could

certainly have concluded that Mr. Cleaton was negligent, as

defined in Florida Administrative Code Ru le 61G15 - 19.001(4).

131. The PCP considered more t han enough information to

provide a reasonable basis in both law and fact for the charges

in the Administrative Complaint. Fish v. DepÓt of Health, Bd.

of Dentistry , 825 So. 2d 421, 423 (Fla. 4th DCA 2002)(some

evidence considered by the panel must reason ably indicate

violation, but need not be so compelling as that required at

hearing).

132. While Respondent ultimately decided to dismiss the

Administrative Complaint, the later information upon which it

based that decision is not relevant here. It is wel l - settled

that in determining whether an agencyÓs action was substantially

justified, only the information available to the PCP at the time

that it acted should be considered. Ag. For Health Care Admin

v. MVP Health, Inc. , 74 So. 3d 1141, 1144 (Fla. 1st D CA 2011).

ÐSubsequent discoveries do not vitiate the reasonableness of the

actions of the board at the time they made their probable cause

determinations.Ñ DepÓt of Health, Bd. of Phys. Therapy Practice

v. Cralle , 852 So. 2d 930, 933 (Fla. 1st DCA 2003); Ag. for

Health Care Admin v. Gonzalez , 657 So. 2d 56 (Fla. 1st DCA

1995).

133. Respondent proved that its actions in directing the

filing of an Administrative Complaint were su bstantially

justified.

CONCLUSION

Based on all of the circumstances and the fo regoing

Findings of Fact and Conclusions of Law, it is

ORDERED:

The Motion for Attorney Fees and Costs filed by Petitioner

pursuant to s ection 57.111, Florida Statutes, is DISMISSED.

DONE AND ORDERED this 24th day of April , 2013 , in

Tallahassee, Leon C ounty, Florida.

S

F. SCOTT BOYD

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.s tate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of April , 2013 .

ENDNOTES

1/ Ms. Wendy Anderson used to be known as Ms. Wendy Gregory and

that name was used in some exhibits and pleadings. The name

Anderson is used throughout this Order to minimize confusion.

2/ The report noted that although the 2007 FBC did specify the

use of a 300 pound load, there had been Ðsignificant discussions

in the industryÑ that this load was too restrictive and that the

appropriate load should be 200 pounds. It also asserted that it

had become Ðaccepted practiceÑ to use 200 pounds, and that the

2010 FBC allowed some elements to be designed fo r a 200 pound

load.

3/ All references to statutes and rules are to the versions in

effec t in 2012, the time that the Administrative Complaint was

dismissed and Petitioner became a prevailing small business

party, except as otherwise indicated.

4/ More commonly, the Department files complaints when directed

to do so by the probable cause pan els of the Boards assigned to

it, as the language of s ection 455.225(4) makes clear. This

statute clearly places the power and responsibility to make the

decisio n to file a formal complaint with the probable cause

panel, not the Department, even when the Department acts as

prosecutor. See Fish v. DepÓt of Health, Bd. of Dentistry , 825

So. 2d 421, 423 (Fla. 4th DCA 2002)(panel of the Board of

Dentistry found probable cause and Ðdirected the filing of an

Administrative ComplaintÑ).

5/ The United States S upreme Court has noted the danger in

addressing previously undecided substantive legal questions

arising from the merits case in an attorneysÓ fees award case

where the law remains unsettled at the time of the EAJA appeal.

Ð . . . a ruling that the Govern ment was not substantially

justified in believing it to be thus - and - so would (unless there

is some reason to think it has changed since) effectively

establish the circuit law in a most peculiar, secondhanded

fashion.Ñ Pierce v. Underwood , 487 U.S. 552, 56 1 (1988) .

COPIES FURNISHED :

Michael John McCabe, Esquire

McCabe Law Group, P.A.

Suite 5

1400 Prudential Drive

Jacksonville, Florida 32207

John Jefferson Rimes, III, Esquire

Board of Professional Engineers

Florida Engineers Management Corp.

Suite B - 112

2639 North Monroe Street

Tallahassee, Florida 32303

Matthew R. Kachergus, Esquire

Sheppard, White, and Kachergus, P.A.

215 Washington Street

Jacksonville, Florida 32202

Ken Lawson, Secretary

D epartment of B usiness

and P rofessional Regulation

No rthwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

J. Layne Smith, General Counsel

D epartment of B usiness

and P rofessional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Zana Raybon, Executive Director

Board of Professional Engineers

D epartment of B usiness

and P rofessional Regulation

2639 North Monroe Street, Suite B - 112

Tallahassee, Florida 32303 - 5268

Michael Flury, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallah assee, Florida 32399 - 1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to s ection 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of App ellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Administrative 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 Co urt of Appeal, First District, or with the

District Court of Appeal in the appellate district where the

party resides. The Notice of Administrative Appeal must be

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