13-001842PL Florida Board Of Professional Engineers vs. Joseph Potts, P.E. Status: Closed Recommended Order on Tuesday, August 27, 2013.

Summary: Board did not show clearly and convincingly that licensee had affixed his seal to documents not prepared by him because it did not show licensee, who denied under oath any involvement in the project, to be the Project's engineer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF PROFESSIONAL

ENGINEERS ,

Petitioner ,

vs. Case No. 13 - 1842PL

JOSEPH POTTS, P.E. ,

Respondent .

/

RECOMMENDED ORDER

A final hearing w as held in this matter before David M.

Maloney, Administrative Law Judge with the Division of

Administrative Hearings, on July 11, 2013 . The hearing was

conducted by video teleconferencing at sites located in

Tallahassee and Lauderdale Lakes .

APPEARANCES

For Petitioner: John Jefferson Rimes, III , Esquire

Florida Engineers Management Corp oration

2639 North Monroe Street , Suite B - 112

Tallahassee, Florida 32303

For Respondent: Joseph Potts, P.E. , pro se

4440 Northeast 13th Avenue

Fort Lauderdale, Florida 33334

STATEMENT OF THE ISSUE

Whether Joseph Potts violated statutes and rules governing

the practice of engineering as charged in the Amended

Ad ministrative Complaint filed with the Clerk of the Florida

Board of Professional Engineers (the "Board") on April 24 , 2013 .

PRELIMINARY STATEMENT

At the final hearing, the Board presented the testimony of

Robert Monsour , P.E.; Wendy Anderson, investigator and public

records clerk for Florida Engineers Management Corporation; and,

Roger Jeffery, P.E., accepted as an expert in structural

engineering. The Board offered nine exhibits , labeled

Petitioner's Exhibits 1 - 9 . All were admitted into evidence .

Respon dent presented his own testimony and offered seven exhibits

labeled Respondent's Exhibits 1 - 7 . Respondent's Exhibits 1, 3,

5, 6 , and 7 were admitted. Respondent's Exhibits 2 and 4 were

ruled inadmissible in light of objections by the Board.

A Transcript was filed on July 22, 2013 . After the hearing,

Petitioner and Respondent filed their proposed findings of fact

and conclusions of law in a timely manner . Their prop osed orders

have been given due consideration.

FINDING S OF FACT

Stipulated Facts

1. A Joint Pre - hearing Stipulation (the "Stipulation") was

filed by the parties on July 9, 2013.

2. The Stipulation contains a section denominated " Admitted

facts " (the "Admitt ed Facts").

3. The Admitt ed Facts are contained in seven paragraphs of

the Stipulat ion as follows:

1. Petitioner, Florida Board of Professional

Engineers, is charged with regulating the

practice of engineering pursuant to Chapter

455, Florida Statutes. This complaint is

filed by the Florida Engineers Management

Corporation (FEMC) on be half of Petitioner.

FEMC is charged with providing

administrative, investigative, and

prosecutorial services to the Florida Board

of Professional Engineers pursuant to Section

471.038, Florida Statutes (1997).

2. Respondent is, and has been at all times

material hereto, a licensed professional

engineer in the State of Florida, having been

issued license number PE 22656. Respondent's

last known address is 4440 NE 13th Ave., Ft.

Lauderdale, FL 33334.

3. On November 23, 2011 Respondent sealed,

signed and dated engineering documents for an

aluminum canopy and screen enclosure for a

Residence located at 7603 NW 167 Street ,

Miami (the Project). The documents consisted

of two (2) pages of engineering design

documents (Drawings) and five (5) pages of

engineer ing calculations (Calculations). The

Calculations provided the engineering basis

for the structural design assumptions

contained in the Drawings.

4. The Calculations were identical copies of

calculations that were originally prepared

and signed and seal ed on May 23, 2011 by

another Professional Engineer, Robert Mansour

[sic] , for another aluminum canopy and screen

enclosure which was located at 15265 SW 36

Terrace, Miami, Fl. [sic] Respondent simply

reproduced and then sealed the Mansour [sic]

calculations for the Project.

5. To meet acceptable engineering standards

the Calculations must have met the following

requirements:

A. They must be susceptible to rational

analysis in accordance with well - established

principles of mechanics and sound enginee ring

practice.

B. They must be mathematically correct.

C. They must clearly state any material

assumptions, if those assumptions are not

obvious.

D. They must accurately model the

actual physical conditions in the area which

they profe ss to address - in this case the

Drawings.

E. They must recognize and deal with

all critical structural conditions in the

area they profess to address - in this case

the Drawings.

6. Section 471.033(1)(j), Florida Statutes,

provides that a Profess ional Engineer's

license is subject to disciplinary action by

the Board for " . . . affixing or permitting

to be affixed his or her seal, name, or

digital signature to any final drawings,

specifications, plans, reports, or document

that were not prepared by him or her or under

his or her responsible supervision,

direction, or control." Rule 61G15 -

19.001(6)(j), Florida Administrative Code,

provides that it is misconduct in the

practice of engineering for a Professional

Engineer to affix his seal and/or signa ture

to plans, specifications, drawings or other

documents required to be sealed pursuant to

471.024(1), Florida statutes, when such

documents have not been personally prepared

by the engineer or prepared under his

responsible supervision, direction and

co ntrol.

7. Section 471.033(1)(g), Florida Statutes,

provides that an engineer is subject to

discipline for engaging in negligence in the

practice of engineering. Rule 61G15 -

19.001(4), Fla. Admin Code, provides that

negligence constitutes "failure by a

pr ofessional engineer to utilize due care in

performing in an engineering capacity or

failing to have due regard for acceptable

standards of engineering principles."

Joint Pre - Hearin g Stipulation, filed July 9, 2013.

The Stipulation's Contested Facts

4. The Stipulation also contains a section denominated

"Contested issues of fact . " See Joint Pre - Hearing Stipulation ,

section g., at 5 - 6. Among them are those under the heading,

" Respondent's Statement " :

Respondent state s he took no actions in this

Project .

Respondent state s he had no involvement in

the final engineering documents for this

project.

* * *

Respondent state s he had not [sic]

involvement in this project.

Id. at 6.

5. The Respondent's Statement in s ection g . of the

Stipulation contra venes matters contained in the Stipulation's

Admitted Facts. ( See "Disavowed Admitted Facts , " below.)

6. Mr. Potts bolstered his written statement s that he had

taken no actions in the Project and was not involved in it,

when , under oath at the hearing, he averred that he had not been

involved in the Project (a disavowal of the Stipulation's

Admitted Facts crucial to the outcome of the case ) .

Disavowed Admit ted Facts

7 . At the final hearing, Mr. Potts under oath disavowed the

first sentence of Stipulat ed Fact No. 3 (that he "signed, sealed

and dated engineering documents for an aluminum canopy and screen

enclosure for a Residence located at 7603 N W 167 Street, Miami

(the Project)" ) .

8 . In sworn testimony, Mr. Potts also disavowed t he second

sentence o f Admitted Fact No. 4 (that he "simply reproduced and

then sealed the Mansour [sic] calculations for the Project") .

9 . With regard to these matters , Mr. Potts, after having

been placed under oath, testified:

My whole case is based on the fact that I had

nothing to do with this -- with this job, and

then someone else placed a seal on the work

and ID stamp on the work, and they did i t

incorrectly . . . .

I have nothing at all to do with these jobs.

Someone else was involved that -- besides

Monsour , someon e also was involved with

placing these seals.

Hr'g Tr. 51 - 52.

10 . When asked who "someone else" might be, Mr. Potts

stated under oath, "Well, I don't want to implicate anybody, but

perhaps the contractor." Hr'g Tr. 52.

11 . On cross - examin ation, Mr. Potts, still under oath,

reiterated that h e had nothing to do with the Project when he

testif i ed that his work was primarily in Palm Beach and Broward

c ounties and that "in the last year or two, I haven't signed any

in Miami that I can recall." Hr'g Tr. 5 4.

Facts Adduced at Hearing

a. Complaint filed by Mr. Monsour

12. In May 2011, Robert Monsour , a professional engineer

who designs aluminum structures, prod uced a set of engineering

documents for an aluminum screened enclosure to be located at

15265 S ou thwest 36 th Terrace, Miami, F lorida (the "SW 36th

Terrace Documents") . The documents included design drawing s and

six pages of hand - written calculations (the " SW 36th Terrace

Calculations " ).

13. In March of 2012, Mr. Monsour received a telephone

call fr om a Miami building official, June Willcott.

Ms. Willcott told Mr. Monsour that a permit applica nt had filed

a set of engineering calculations as part of a permit

application with the building department. The permit

application was for a pool screen encl osure to be located at

7603 N orthwest 167 th Street, Miami (the "167th Street

P roperty " ). Ms. Willcott, i n her capacity as a building

official, is f amiliar with Mr. Monsour 's work product . Her

familiarity with his work led her to note that the calculation s

for the 167th Street Property appeared to be id entical to

Mr. Monsour 's work yet contained the seal and signature of

another professional engineer . The seal and signature appeared

to be that of Mr. Potts.

14. Approximately three weeks later , the owner s of the

167th Street Property paid a visit to M r. Monsour . They

presented the 167th Street Property d ocuments related to their

property that purported to be signed and sealed by Mr. Potts.

Mr. Monsour reviewed the documents . He noted that the

calculati ons (the "167th Street Calculations") appeared to be

copies of the SW 36 th Terrace C alculations made by Mr. Monsour

in May 2011 , with a few modification s .

15. Mr. Monsour explained the modifications in the second

set of calculations in his testimony:

[T] he calcs were intact for columns that are

spaced on seven - foot centers, but the sketch

that was submitted . . . had calcs spaced on

nine - foot centers. So that didn't

correspond. And also, the footing was

changed from a 16 - by - 22 to 16 - by - 12 . . . .

Hr'g Tr. 21. Otherwise , the six pages of the hand - written 167th

Street C alculations appeared to be identical to the six pages of

the SW 36th Terrace Calculations. Furthermore, but for the

m odifications detailed by Mr. Monsour , the two sets of

calculations app eared to be in Mr. Monsour 's writing, that is,

the 167th Street Calculations appeared to be pho tocopies of the

SW 36th Terrace Calculations hand - written by Mr. Monsour with

the few modifications detailed above .

16. The only other differences between the two sets of

calculations related to identification information. The initial

page of the SW 36th Terrace Calculations show that they were

produced by Ramms Engineering, Inc., Mr. Monsour 's Structural

Design company located in Hialeah, Florida. The initial page of

the 167th Street Calculations indicates they were produced by

Mr. Potts as follows :

Joseph Potts, P.E.

4440 NE 13th Ave

Ft. Lauderdale Fl. 33334

954 - 772 - 1713

Petitioner's Ex. 4 at 000016 .

1 7 . Mr. Monsour observe d that his seal and signature h a d

been removed or cove red over in the 167th Street Calculations .

In place of Mr. Monsour 's seal and signature, t he initial page

of the 167th Street Calculations now contained what purported to

be the embossed seal and signature of Mr. Potts. See

Petitio ner's Ex. 4, bate - stamped 000016. Two additiona l pages

of 167th Street Property d ocuments also purported to be sealed

and signed by Mr. Potts: Design Drawings of a "PROPOSED 3"

INSULATED ROOF ." See Petitioner's Ex. 3 and 4 at 000014 and

000015.

1 8 . Mr . Monsour filed a complaint with the Florida Board

of Professional Engineers against Respondent since the

identification information ( including the seals and sig natures )

appeared to be attributable to Mr. Potts , and Mr. Potts had

neither obtained permissio n from Mr. Monsour nor notified him of

intent to use the SW 36th Terrace C alculations .

b. Use of the Work of Another Engineer

1 9 . Protocols must be followed for an engineer to properly

utilize and incorporate original work of another engineer into a

new project. The incorporating engineer must notify the

original engineer. The incorporating engineer must review and

analyze the original engineer's work to determine if it is

applicable to the incorporating engineer's project before

sealing and signing it .

20 . Mr. Monsour was not notified that his work on the

SW 3 6th Terrace p roject would be used for the 167th Street

Property p roject.

2 1 . The c alculations in the 167th Street Property

d ocuments , furthermore, were not appropriate for the 167th

Street Pro perty Project. The inappropriateness was significant

as explain ed by Mr. Jeffery in expert testimony at hearing . See

Hr'g Tr . 38 - 43. Among the problems created by the

inappropriateness of using the SW 3 6th Terrace Calculations

(even in consideration of the two modifications) is that "the

beam is inadequate to resist the loads shown in the

calculations. " Hr'g Tr. 42. Simply put, the assumptions and

analysis in the SW 3 6th Terrace Calculations were for an

enclosure that was of a different size and scope than the

enclosure at the 167th Street Property.

2 2 . T he 167th Street Calculations were materially

deficient , moreover, because of inconsistency with the drawing s

in the 167th Street Property d ocuments in the following ways :

(a) The drawings indicated a column spacing of nine feet.

The calculations used a column spacing of seven feet . The

incorrect length used in the calculations results in an

overstress of the 2 - by - 5 beam that spans the nine feet between

the columns. This error also results in a def lection in excess

of the allowable deflection.

(b) The footing size required to resist the uplift is

correctly calculated in the SW 3 6th Terrace Calculations. In

contrast, t he footing indicated on the corresponding page of the

167th Street Calculations is undersized and will not resist the

calculated uplift forces.

A More Detailed Defense: Seal and Other Discrepancies

2 3 . In addition to declaiming involvement in the 167th

Street Property P roject , Mr. Potts offered details of the seal

he claim s to use currently as proof that he did not sign or seal

the 167th Street Calculations .

2 4 . The impre ssion on the seal Mr. Potts claims to use

currently contains the term "certificate" in its center . It is

the term that identifies his engineering license along w ith a

number uniquely assigned to him . In contrast, the impression on

the 167th Street Property d ocuments contain s the word "license . "

2 5 . The abbreviation for "number" on the impression of the

seal he uses currently is "NO" with both the "N" and the "O " in

upper case. The abbreviation for "number" on the impression of

the seal affixed to the 167th Street Property d ocuments is "No"

with only the "N" in upper case and the "o" in lower case.

2 6 . The term "license , " unlike the term in the seal

Mr. Potts claims he uses currently, is the required term for

seals of professional engineers in Florida. The use of the term

"certificate" has been invalid for some 1 6 years.

2 7 . Mr. Potts offered no documents that confirmed his use

of the invalid seal he claims he now uses. But, i t is not

unusual for an engineer to possess several seals. And, i t is

certainly possible that Mr. Pot ts might possess a seal that is

not up - to - date, howeve r unlikely it would be that an engineer

who strives to comply with the Board's r ules might use a seal

that has been outdated for such a length of time .

2 8 . Mr. Potts pointed out another discrepancy in the 167th

Street Property d ocuments. The telephone number listed in the

i nformatio n in the heading of the initial page of the

calc ulations that identifies Mr. Potts as the Project's engineer

transposes two of the numbers. The telephone number is shown as

954 - 772 - 17 13 when, in fact, Mr. Potts' business telephone number

is 954 - 772 - 17 31 .

Signature Evidence

2 9 . Petiti oner's Exhibit 6 contains six pages of documents

retrieved from the records of the Florida Engineers Management

Corporation , the custodian of disciplinary records for the Board

of Professional Engineers . See Petitioner's Ex. 6 at 000029 -

000035. The documents had been sub mitted by Mr. Potts to the

Board's custodian of records in "two separate disciplinary cases

during his probationary period." Hr'g Tr. 33.

30 . Each of the six pages contains Mr. Potts ' signature.

To the e ye untrained in hand - writing analysis, t he six

si gnatures are similar to the signature that appear s on the

initial page of the 167th Street Calculations. See Petitioner's

Ex. 4 at 000016.

3 1 . There are some unusual characteristics that the

signatures in Petitioner's Ex hibit 6 have in common with the

s ignatures on the 167th Street Calculations. For example , the

signature over the seal on the initial page of the 167th Street

Calculations is slanted upward much the same as the signature

that appears in Petitioner's Exhibit 6 at 000033 ( a page that

contai ns a boxed - in heading, "FRAME CALCS" ). In essence, the

sign ature and date on bate - stamped page 000033 in Petitioner's

Exhibit 6 ( a page of frame calculations ) is in a somewhat

unusual manner similar to the signature over the seal on the

initial page of th e 167th Street C alculations .

CONCLUSIONS OF LAW

a. Jurisdiction

3 2 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120.569 and 12 0. 57(1), Fla. Stat .

b . Clear and Convincing E vidence

3 3 . Petitioner must prove the allegations of its

administrative complaint by clear and convincing evidence. Dep ' t

of Banking & Fin . v. Osborne Stern and Co . , Inc. , 670 So. 2d 932

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

3 4 . The "clear and convincing" standard requires:

[T]hat the evidence found must 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 of such weight

that it produces in the mind of the trier of

fact a firm belief or conviction, without

h e s itancy, as to the truth of the allegations

sought to be established.

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

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

c . Strict Construction of Penal Statutes

3 5 . " Statutes providing for the revocation or suspension of

a license to practice are deemed penal in nature and must be

strictly con strued, with any ambiguity interpreted in favor of

the licensee." Elmariah v. Dep ' t of Bus . & Prof 'l Reg . , 574 So.

2d 164, 165 (Fla. 1st DCA 1990).

d. Application of the Charges to the Facts

3 6 . If Mr. Potts, contrary to his denials under oath,

signed and sealed the 167th Street Documents, he is in violation

of : s ection 471.033(1)(g ), 1/ as charged in Count I of the

Administrative Complaint ; and s ection s 471.003(1)(j) and

471.033(1)(a) [ by violating r ules 61G15 - 19.001(6)(j) and 61G15 -

29. 001 (3) ], as char ged in Count II .

3 7 . The issue is whether Mr. Potts did, indeed, sign and

seal the 167th Street Property d ocuments. Other than making

documents that purport to be signed, sealed and dated by

Mr. Potts part of the evidentiary record, and providing docume nts

in other projects that appear to match the signatures on the

Project's documents, the Board did not prove a nexus between

Mr. Potts and the 167th Street Property Project. It did not

present the testimony of the owner or the co ntractor who might

have h ired Mr. Potts; nor did it offer documentary evidence, such

as a written contract, an invoice or other billing record or a

copy of a check paid to Mr. Potts for work on the project , which

might have demonstrated Mr. Potts' involvement in the Project .

In c ontrast, Mr. Potts under oath denied involvement in the

Project.

3 8 . Ordinarily, parties are bound by facts admitted in a

stipulation or are confined to the scope of issues they stipulate

to be the issues in a case. See, e.g. , Gandy v. Dep ' t of

Offender Rehab . , 351 So. 2d 1133 (Fla. 1st DCA 1977). The

Stipulation in Mr. Potts' case, however, contains an internal

conflict. The "Respondent's Statement" that Mr. Potts took no

action with r egard to the P roject and had no involvement in it

contravenes th e Admitted Facts : 1 ) that Mr. Potts sealed, signed

and dated the 167th Street Property Project's engineering

documents ; and 2 ) t hat Mr. Potts reproduced and then sealed

Mr. Monsour 's SW 36th Terrace Calculations . In sum, the

Stipulation does not clearly an d convincingly establish facts

necessary to sustain the charges against Mr. Potts.

3 9 . Without regard to whether the Admitted Facts stand or

are nullified by the Stipulation's internal conflicts ( or by

Mr. Potts ' subsequent sworn testimony ) , t he Board ar gues that it

prove d the violations through the evidence presented in its case -

in - chief : the 167th Street Property d ocuments and the SW 3 6th

Terrace Calculations ; the testimony of M ess r s . Monsour and

Jeffery and Ms. Anderson ; and the documentary evidence in troduced

through them, in particular , the signature evidence . I n the wake

of the Board's evidence , however, the Board views Mr. Potts'

defense to be th at th e 167th Street Property d ocuments were

forged. Forgery is a defense th at th e B oard asserts is "in the

nature of an avoidance or affirmative defense." Petitioner's PRO

at 11.

40 . The Board also sees Silverstone v. Bd . of Opticianry ,

Case No. 96 - 5772 (DOAH June 13, 1997) as instructive of which

party bears the burden of proving the facts with regard t o the

alleged forgery . The case involve d an application for licensure

that on its face showed the standards for licensure had been met .

The agency asserted that a document filed by the applicant was

forged , and the administrative law judge determined tha t, even

though the applicant had the burden of proof (as does the Board

in this case) to establish entitlement to the license, the agency

there - - by asserting the documents were forged (as Mr. Potts

does) - - assumed the burden of persuasion in proving the forgery.

4 1 . Mr. Potts did not prove the documents were forged by

some other party . But, Mr. Potts' defense was not limited to a

claim of forgery. His primary defense was utter lack of

involvement in the Project. Mr. Potts' lack of proof with regard

to forgery does not cure the Board's failure to prove an

es sential element of its case clearly and convincingly : that

Mr. Potts was the engineer for the P roject.

4 2 . The signature evidence produced by the Board lends

credence to its decision to take ac tion against Mr. Potts'

license. But, standing alone, it is not of sufficient quality

a nd weight to show that Mr. Potts was the Project's engineer .

4 3 . The Board's suspicions , without doubt, were right ly

raised by the documentary evidence it produced. And Mr. Potts

did much less than he could have done (assuming his testimony

were truthful) to aid his denial of involvement in the 167th

Street Property Project. Testimony from the owner of the

property or the contractor that Mr. Potts was not involved, f or

example, would have e ased any doubt about Mr. Potts' veracity or

the quality of his testimony. Were there a competent witness who

testified that Mr. Potts was involved in the 167th Street

Property Project and were Mr. Potts still to testify under oath

that he was not, then an exercise in determining which witness

was the more credible could have been undertaken. Had

documentary evidence been admitted that showed involvement in the

Project, such as a contract or an invoice, it could have been

weighed ag ainst Mr. Potts' testimony. As the record stands,

however, there is no evidence of involvement in the Project

against which to judge Mr. Potts' sworn testimony.

44. Without proof that Mr. Potts was the Project's engineer

that meets the "clear and conv incing" standard , the Board did not

prove that Mr. Potts committed the violations with which he is

charge d in the Amended Administrative Complaint. The case

against Mr. Potts should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact an d Conclusions of

Law, it is

RECOMMENDED that the Florida Board of Professional Engineers

enter a Final Order that dismisses the Amended Administrative

Complai nt filed on April 24, 2013 , with the Florida Engineers

Management Corporation on behalf of the Bo ard against Joseph

Potts , P.E., license number PE 22656 .

DONE AND ENTERED this 27th day of August , 2013 , in

Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearing s

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 27th day of August , 2013 .

ENDNOTE

1 / Refer ences to statutes are to Florida Statutes (2012) unless

otherwise noted.

COPIES FURNISHED:

John Jefferson Rimes, III , Esquire

Florida Engineers Management Corp oration

2639 North Monroe Street , Suite B - 112

Tallahassee, Florida 32303

Joseph Potts, P.E.

4 440 Northeast 13th Avenue

Fort Lauderdale, Florida 33334

Zana Raybon, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

2639 North Monroe Street, Suite B - 112

Tallahassee, Florida 32303

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 Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 323 99 - 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 Fi nal Order in this case.