STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) BOARD OF PROFESSIONAL ENGINEERS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7994

)

SHRINIVAS K. NAYAK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Tallahassee, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Anthony Cammarata, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Shrinivas K. Nayak, pro se

3512 Shirley Drive

Tallahassee, Florida 32301 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent is guilty of negligence or misconduct in the practice of engineering, involving his submittal of an allegedly substandard design concerning a waste-water treatment and disposal facility for an entity known as the "Jefferson Nursing Center" (JNC) and whether, if such is established, he is subject to discipline for violating the charged provisions of Chapter 471, Florida Statutes, and the extent of that discipline.

PRELIMINARY STATEMENT

This cause arose upon the filing of an Administrative Complaint against the Respondent by the Petitioner agency charging him with violation of Section 471.033(1)(g), Florida Statutes. The Petitioner contends that the Respondent submitted a design for a "reclaimed water disposal" system for the JNC in Monticello, Florida, to the Department of Environmental Regulation, now known as the Department of Environmental Protection, (Department, DER). It is alleged that the design statement submitted by the Respondent constituted engineering practice of a specific type for which the Respondent was not properly trained by

education and experience and that it was negligently performed. The DER had complained to the Petitioner agency alleging that the Respondent was not qualified to perform the geotechnical or hydrogeological engineering required to design the project in question. The Respondent's soil and ground water data allegedly was inadequate in that it did not provide for calculations which would indicate that the performance of the system at issue would meet the design standards. The Petitioner agency has, therefore, alleged that the Respondent was negligent in the practice of engineering in violation of Section 471.033(1)(g), Florida Statutes, and guilty of misconduct in the practice of engineering.

The Respondent availed himself of the right to a Section 120.57(1), Florida Statutes, proceeding upon being served with the Administrative Complaint; and, after a number of procedural delays, the cause came on for hearing as noticed.

The Petitioner presented the testimony of Robert Reining, the domestic waste-water section supervisor with the Department; Mr. Bobby Cooley, the water facilities program administrator with the Department; and Bryant Marshall, a consulting geotechnical engineer with Geotechnical and Environmental Consultants, Inc. of Orlando, Florida, and an expert witness. The Petitioner also offered Exhibits A-F into evidence, all of which were admitted.

The Respondent presented his own testimony, as well as that of George Davis, the owner of a waste oil and waste-water treatment facility in Tallahassee, Florida. The Respondent also presented the testimony of Jim Stidham, a professional engineer with Jim Stidham & Associates, Inc., Tallahassee, Florida. The Respondent offered Exhibits 1-4 into evidence, and Exhibits 2, 3 and 4 were admitted into evidence.

Upon conclusion of the hearing, the parties elected to obtain a transcript of the proceedings and to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The proposed findings of fact have been treated in this Recommended Order and again specifically in the Appendix attached hereto and incorporated by reference herein..

FINDINGS OF FACT

1. The Respondent is a duly-licensed professional engineer in the State of Florida having been issued License No. PE0035663. The Petitioner is an agency of the State of Florida charged, in pertinent part, with interpreting, enforcing, and regulating concerning the licensure and professional practice standards for professional engineers in the State of Florida embodied in

   Chapter 471, Florida Statutes. The Respondent practices engineering as Dr. S.K. Nayak & Associates, Regulatory, Environmental and Civil Engineering Consultants. That engineering firm is not licensed as a professional engineering firm in the State of Florida.

   
   

2. On September 20, 1988, the permit to the JNC by the Department for its domestic waste-water treatment and disposal system expired. Thereafter, on June 16, 1989, an application to operate such a system was submitted to the Department by Mr. Cordes on behalf of the JNC. The Respondent was the professional engineer of record depicted on that application. On or about July 14, 1989, the Department issued a notice of permit denial concerning that application and cited six deficiencies as the basis for the denial.

   
   

3. The notice of permit denial identified the JNC's reclaimed water distribution system as not being designed in accordance with sound engineering

   principles and practices, as delineated in Rule 17-6.070(1)(a), Florida Administrative Code, and the design as not being provided in the manner required by Rule 17-610.414, Florida Administrative Code. The permit applicant was thus advised by the notice of permit denial that some modifications for the water distribution and storage system would have to be undertaken and completed in order for permitting to be effected.

   
   

4. Thereafter, on or about January 30, 1990, the Respondent submitted a design statement for a reclaimed water disposal system to the Department. The design must conform to certain criteria enunciated in Chapter 17-610, Florida Administrative Code. The design for such a system must be accompanied with an engineering report to document geohydrological conditions at the site and to document that a ground water mounding analysis has been performed for the percolation pond systems, in order to verify that the systems will perform satisfactorily under the pertinent provisions of Chapter 17-610, Florida Administrative Code. The Department considered the design submitted by the Respondent to constitute the necessary design for the application for a new operating permit for the JNC. Expert witness Bryant Marshall's testimony establishes clearly that the creation of the design and its submittal to the Department constitutes a specific type of engineering practice and moreover that that sort of design requires a specific type of geotechnical and geohydrological engineering experience.

   
   

5. Upon reviewing the design statement submitted by the Respondent, the Department advised Mr. Cordes of numerous items of incompleteness which would need to be addressed before an evaluation of the proposal, including design, could be performed. Mr. Cordes was informed of this by letter from the Department of February 23, 1990, which was copied to the Respondent. See, Exhibit B in evidence.

   
   

6. Upon reviewing the design submitted, the Department determined that, because of the limited data and analyses and absence of calculations in that design document, that the Respondent had not demonstrated that he was qualified to perform such geotechnical and hydrogeological engineering, with pertinent calculations and depictions as was required for a project such as that proposed, nor had that type of required engineering work been done. Ultimately, therefore, it filed a complaint against the licensure of the Respondent with the Petitioner licensing agency.

   
   

7. On April 9, 1990, the Respondent submitted a signed and sealed withdrawal of the design statement previously submitted to the Department. The Respondent contends that he never intended that the design statement originally submitted should constitute the final "as built" design for the water reclamation facility involved. Rather, he contends that it was intended by the Department, by himself, and by his client to be merely a preliminary or suggested design solely for purposes of negotiation concerning the permit denial and an attempt to work out a satisfactory arrangement with the Department in terms of the Department's conditions and requirements for design and construction, so that the proposed facility could be permitted. The Respondent contends that that was not the practice of engineering but, rather, submittal of a preliminary design statement which he claims the Department required of him. He thus submitted the design statement with the full understanding that it was not intended by him, or by the Department for that matter, to be a feasible final proposal or design and knowing that it was not up to standard or intended to be and knowing that it did not comply with certain applicable rules and regulations, he did not sign or seal it.

8. Mr. Marshall, the expert witness put forward by the Petitioner, opined that the submission of substandard work, merely because another party has requested it for negotiating purposes, or for whatever reason, still is not acceptable practice for a licensed professional engineer. Merely because one is of the intent and opinion that submittal of the work will not be the final work product, by which the facility in question is to be built, is no excuse for not complying with proper standards of professional engineering practice.

   
   

9. The Respondent's soil and ground water data was shown by Mr. Marshall to be inadequate because it did not provide for the necessary calculations which could indicate whether the performance of the system will actually meet the design criteria, given the geotechnical soil and hydrogeological conditions prevailing at the site, which were not adequately allowed for by their entry into proper calculations which should have been performed by the Respondent.

   The Respondent's professional history moreover does not reflect adequate geotechnical or hydrogeological experience and training necessary for a project such as the JNC at issue.

   
   

10. It has been established by Mr. Marshall's testimony, which is adopted, that standards of practice were not followed because an appropriate subsurface exploration geotechnical investigation, laboratory soil testing, engineering analysis, and ground water mounding analysis was not performed. Even if the Respondent had adequate training in geotechnical and hydrogeological engineering, he promulgated a deficient engineering document in terms of this design, regardless of whether or not it was signed or sealed, because it constituted the practice of professional engineering and yet he failed to perform and to indicate on his design that the geotechnical and hydrogeological investigations required for such work had been performed. The document was based only on a review of available published information regarding surficial and sub-surficial soil conditions. No test borings were done in accordance with standard practice. The percolation testing performed by the Respondent was shown by Mr. Marshall to be inadequate under the circumstances of the project for which design was being considered.

    
    

11. The proper geotechnical exploration, in keeping with standard engineering practice, would require the use of soil test borings to depths of 20 to 30 or perhaps 40 feet below ground surface. This would be necessary to properly characterize the aquifer and subsurface conditions and to evaluate the properties of the soil within that zone to determine what the actual hydraulic characteristics of the subsurface profiles would be.

    
    

12. It would then be necessary to perform laboratory permeability testing on the soil samples from the various depths so as to properly characterize the aquifer performance or predicted aquifer performance for the entire depth zone to those significant depths. Just the top 18 or 20 inches of soil is not an adequate investigation.

    
    

13. Further, the Respondent provided no documentation for his conclusions regarding established ground water movement, established surface water flow, and confirmed ground water table elevations. According to Mr. Marshall, it is safe to assume that surface water flow might be to the southeast given the site's topography and the fact that the ground slopes downward toward the southeast and generally toward the east, as well. However, the Respondent provided no documentation of any test borings or other site-specific geotechnical investigation work done to verify anything about the direction of ground water flow nor the ground water table elevation. Apparently the Respondent relied upon general information contained in a soil survey of Jefferson County but did

    not do site-specific investigatory work, in keeping with standard engineering practice, which would allow him to make those types of conclusions in a legitimate fashion.

    
    

14. Mr. Marshall thus opined and established that the submission of the work by the Respondent was substandard work and that it is not justifiable engineering practice to submit such substandard engineering work, even if it is done at the request of another party with an understanding between the engineer and the other party and the client that this work is merely to be a preliminary design for purposes of negotiation between the regulator and the client. It is also no excuse for such substandard engineering practice that the Respondent submitted it without it being signed or sealed in his capacity as an engineer. The lack of the signing or sealing does not render it immune from having to comport with standard, acceptable engineering practice. Accordingly, it has been demonstrated that the Respondent was negligent in the practice of engineering in these particulars, with regard to his participation and design concerning the JNC project. Because the Respondent intended that this be a preliminary submittal, solely for the purposes of negotiation between himself, his client, and the regulatory agency and did not intend that it be a final design to be built in an attempt to comply with regulatory requirements, he has not been shown to have intentionally committed misconduct in the practice of engineering.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

16. The Department has the burden of proving by clear and convincing evidence the truth of the allegations against the Respondent asserted in the Administrative Complaint. See, Ferris v. Turlington, 510 S.2d 292 (Fla. 1987).

    
    

17. The Department has charged the Respondent with violating Section 471.033(1)(g), Florida Statutes, by committing negligence or misconduct in the practice of engineering. As delineated in the above Findings of Fact, the Department has established by clear and convincing evidence that the Respondent violated that provision. It has not been established, for the reasons enunciated in the above Findings of Fact, that the Respondent committed misconduct in the practice of engineering but, rather, negligence. The totality of the testimony, with particular emphasis on the accepted expert testimony of witness Bryant Marshall, established that, while the Respondent may be qualified in the areas of geotechnical and hydrogeological engineering by his education, his practice of engineering in those particulars, in sanitary engineering and in general civil engineering in the instance involved in this proceeding was substandard and amounted to negligence for the reasons asserted in the above Findings of Fact.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Board of Professional

Engineers finding the Respondent guilty of violating Section 471.033(1)(g),

Florida Statutes, to the extent that he is guilty of negligence in the practice of engineering and that he be issued a reprimand and that his licensure be placed in probationary status for a period of one year with reasonable terms to

be decided by the Board, including the requirement of continuing professional education in the area of compliance with appropriate professional practice standards.

DONE AND ENTERED this 4th day of March, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-7994

Petitioner's Proposed Findings of Fact

1-23. Accepted, to the extent they are consistent with the findings of fact of the Hearing Officer and otherwise as subordinate to the Hearing Officer's findings of fact.

Respondent's Proposed Findings of Fact

1. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Rejected, as not being entirely in accordance with the greater weight of the evidence; to some extent, irrelevant; and to some extent, as being legal conclusions and not proposed findings of fact.

3. Rejected, as not being entirely in accordance with the greater weight of the evidence, as constituting an incorrect conclusion of law, and as subordinate to the Hearing Officer's findings of fact on this subject matter.

4-5. Rejected, as not in accordance with the greater weight of the evidence in its entirety, as constituting argument rather than a proposed finding of fact, and being an incorrect conclusion of law.

6. Rejected, as not in accordance with the greater weight of the evidence in its entirety, as constituting argument rather than a proposed finding of fact, as being an incorrect conclusion of law, and to some extent, irrelevant.

COPIES FURNISHED:

Anthony Cammarata, Esquire Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Shrinivas K. Nayak 3512 Shirley Drive

Tallahassee, Florida 32301

Jack McRay, Esq.

General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0755

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF PROFESSIONAL ENGINEERS

SHRINIVAS K. NAYAK,

Petitioner,

vs. DOAH CASE NO.: 91-7994

LICENSE NO.: PE0035663

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF PROFESSIONAL ENGINEERS,

Respondent.

/

FINAL ORDER

THIS CAUSE came on to be heard before the Board of Professional Engineers at a regularly scheduled meeting held in Tallahassee, Florida, on April 19, 1994, for consideration of the Recommended Order entered in this cause by Hearing Officer.

The Board, having reviewed the complete record in the above styled cause, including the transcript and exhibits, hereby makes the following rulings.

The Board hereby adopts the Findings of Fact and Conclusions of Law and finds that the record reflects the necessity for a more serious penalty than that recommended by the Hearing Officer. Therefore, the Board rejects the Hearing Officers recommended penalty and imposes the following penalty: Petitioner's license is hereby SUSPENDED for one (1) year. Petitioner shall complete a course on professionalism and ethics along with the study guide.

This Order becomes effective upon filing with the Agency Clerk.

The Parties are notified, pursuant to Section 120.68, Florida Statutes, that they may appeal this Final Order by filing, within thirty days of the filing date of this Order, a notice of appeal, accompanied by filing fees prescribed by law, with the District Court of Appeal.

DONE AND ORDERED this 13th day of February, 1995.

BOARD OF PROFESSIONAL ENGINEERS

PEDRO O. MARTINEZ CHAIR

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Shrinivas K. Nayak, 3512 Shirley Drive, Tallahassee, Florida 32311 this 23rd day of February, 1995.

ANGEL T. GONZALEZ, PH.D. EXECUTIVE DIRECTOR

Docket for Case No: 91-007994

Orders for Case No: 91-007994