STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PROFESSIONAL ) ENGINEERS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5994

)

MONRAD R. THUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on January 18, 1991, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

FOR PETITIONER: Michael A. Mone, Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0752

FOR RESPONDENT: Mr. Monrad R. Thue, pro se

8520 S.W. 53rd Court Miami, FL 33143

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent violated Section 471.033(1)(g), Florida Statutes, by displaying negligence in the practice of engineering, and violated Section 471.033(1)(j), Florida Statutes, by sealing a drawing which was not prepared by him or under his responsible supervision, direction, or control. The Respondent denies that there has been any violation.

PRELIMINARY STATEMENT

At the formal hearing the Petitioner presented the testimony of two witnesses, one of whom was an expert in engineering, and offered three exhibits. The Respondent testified on his own behalf, presented the testimony of another expert in engineering, and offered eight exhibits. Some of the exhibits offered by the Respondent were hearsay documents received only for the purpose of corroboration.

At the conclusion of the hearing the parties announced that they did not intend to submit a transcript. They asked for, and were granted, twenty days from the conclusion of the hearing within which to submit their proposed recommended orders. All parties submitted timely proposed recommended orders containing proposed findings of fact and conclusions of law. All proposed findings of fact submitted by all parties are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, the Respondent, Monrad R. Thue, has been a licensed engineer in the State of Florida, having been issued license number PE 0032071.

   
   

2. The Respondent's address is 8520 S.W. 53rd Court, Miami, Florida 33143.

   
   

3. In January of 1987, the Respondent signed and sealed plans for the steel elevator support of the "Sander's residence" located on Key Biscayne, Florida. At the time of signing and sealing the plans, the Respondent also placed the following limiting notation over the seal: "For steel elevator supports only."

   
   

4. The Respondent did not meet with the draftsman, David Del Sol, either prior to or during the draftsman's preparation of the plans. Daniel Del Sol, who is David Del Sol's brother, took the subject plans to the Respondent because the building department required that the elevator support portion of the plans be sealed by a licensed engineer before it could be approved.

   
   

5. The Respondent carefully reviewed the plans drawn by David Del Sol and retained the plans for a couple of days During the next two days the Respondent did the necessary calculations and made some minor drafting changes on the support system sections of the plans. He than signed and sealed the plans and returned them to David Del Sol. These actions by the Respondent constitute responsible supervision, direction, or control. 1/

   
   

6. The steel elevator support portion of the plans suffers from a lack of coordination in several details and could have been drawn somewhat clearer. The lack of coordination and clarity in the subject plans does not, however, constitute negligence in the practice of engineering. 2/

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

8. The Board of Professional Engineers is authorized by Section 471.033(1), Florida Statutes, to take disciplinary action against a licensee for the following relevant acts:

   
   

   (g) Fraud or deceit, negligence, incompe-, tence, or misconduct, in the practice of engineering;

   * * *

   (j) Affixing or permitting to be affixed his seal or his name to any plans, designs, drawings, or specifications which were not

   prepared by him or under his responsible supervision, direction, or control....

   
   

9. In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris

   v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

   
   

   We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   
   

   See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the above- quoted language from Slomowitz. The Smith case also includes the following at page 958:

   
   

   "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

   
   

10. As stated in the findings of fact, the greater weight of the evidence in this case on the charge of negligence is to the effect that the Respondent was not negligent. Accordingly, Count I of the Administrative Complaint should be dismissed.

    
    

11. As stated in the findings of fact, the greater weight of the evidence in this case on the charge of failing to exercise responsible supervision, direction, or control is to the effect that the Respondent did exercise responsible supervision, direction, or control. Accordingly, Count II of the Administrative Complaint should be dismissed.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Professional Engineers issue a final order in this case dismissing all charges against the Respondent.

DONE AND ENTERED at Tallahassee, Leon County, Florida, this 25th day of March, 1991.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1991.

ENDNOTES

1/ The expert witnesses expressed opposing views on this subject. The greater weight of the evidence is to the effect that the Respondent's actions did constitute responsible supervision, direction, or control. In this regard it is specifically noted that the Petitioner's proof does not clearly establish the nature, scope, or quality of supervision, direction, or control required by the statute. Absent clear and convincing proof of the nature of the requirement, the Petitioner cannot establish a departure from the requirement by the required clear and convincing evidence.

2/ The experts for both sides agreed that there were lack of coordination and clarity problems with the subject plans. The experts differed, however, as to whether those shortcomings of the plans constituted negligence in the practice of engineering. The greater weight of the evidence supports a finding that the Respondent was not negligent in the preparation of the relevant portions of the subject plans.

APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 90-5994

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings submitted by Petitioner:

Paragraphs 1, 2, 3, and 4: Accepted.

Paragraphs 5 and 6: Rejected as contrary to the greater weight of the evidence.

Proposed findings submitted by Respondent:

Paragraph 1: Accepted in substance.

Paragraphs 2, 3, 4, 5, 6, 7, 8, and 9: The vast majority of the findings proposed in these paragraphs are rejected as subordinate details which are unnecessary in light of the finding that these various details do not constitute negligence.

Paragraph 10: Rejected as constituting primarily argument, rather than proposed findings of fact. And, in any event, any factual details in this paragraph are unnecessary for the reasons stated immediately above.

Paragraph 11: Accepted.

Paragraphs 12 and 13: Rejected as constituting primarily argument, rather than proposed findings of fact. And, in any event, any factual details in this paragraph are unnecessary in light of the finding that the Respondent did responsibly supervise, direct, or control the subject plans.

COPIES FURNISHED:

Michael A. Mone', Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0752

Mr. Monrad R. Thue 8520 S.W. 53rd Court Miami, FL 33143

Jack McRay, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Mr. Rex Smith Executive Director

Board of Professional Engineers Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

Docket for Case No: 90-005994

Orders for Case No: 90-005994