DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF PROFESSIONAL ENGINEERS, )
vs. ) Case No. 04-2653PL
PAUL H. DANFORTH, P.E., )
Respondent. )
Pursuant to notice, a final hearing was held in this case on October 6, 2004, in West Palm Beach, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Douglas D. Sunshine, Esquire
For Respondent: David P. Rankin, Esquire
Law Office of David P. Rankin, P. A. 18540 North Dale Mabry Highway
The issue for determination is whether Respondent committed the offenses set forth in the Second Amended Administrative Complaint and, if so, what action should be taken.
The Department of Business and Professional Regulation, Board of Professional Engineers (Board) filed a two-count Amended Administrative Complaint against Paul H. Danforth, P. E. on June 10, 2004, prosecuted by the Florida Engineers Management Corporation.1 The Amended Administrative Complaint charged
Mr. Danforth with the following: Count I--falsifying the extent of his experience to imply qualification for selection for advancement in the licensure as a Special Inspector in violation of Section 471.033(1)(g), Florida Statutes (2002), by committing fraud, deceit or misconduct in the practice of engineering, and in violation of Florida Administrative Code Rule 61G15- 19.001(2)(f); and Count II--issuing a misleading certification of compliance and conformance, constituting misconduct in violation of Florida Administrative Code Rule 61G15-19.001(6) and constituting negligence and misconduct in the practice of engineering in violation of Section 471.033(1)(g), Florida Statutes (2002). Mr. Danforth contested the material allegations of the Amended Administrative Complaint and requested a hearing. On July 27, 2004, this matter was referred to the Division of Administrative Hearings.
At final hearing, the Amended Administrative Complaint was orally amended by the Board through agreement of the parties.
Administrative Complaint was amended, but not the violations. By agreement of the parties, the hearing proceeded with the oral changes. A Second Amended Administrative Complaint, reflecting the oral amendments made at hearing, was filed on December 13, 2004.
At hearing, the Board presented the testimony of two witnesses and entered six exhibits (Petitioner's Exhibits numbered 2-7) into evidence. Mr. Danforth testified on his own behalf, presented the testimony of two witnesses, and entered one exhibit (Respondent’s Exhibit numbered 1) into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on November 3, 2004. Subsequently, the parties were granted an extension of time to file their post-hearing submissions. The parties timely filed their post-hearing submissions, which have been considered in the preparation of this Recommended Order.
At all times material hereto, Mr. Danforth was licensed by the Board as a professional engineer, having been issued license number PE 44653.
On March 5, 1996, Mr. Danforth was issued a Special Inspector license, license number 1103, by the Department of Community Affairs (DCA).
Mr. Danforth submitted an application for the Special Inspector's license (Application) to DCA on January 29, 1996, based upon his experience and hours of structural design course work.
In his Application, Mr. Danforth represented that, during 1995 through 1996, he had inspected the structural elements of four threshold type buildings.
From October 1993 through April 1998, Mr. Danforth was employed by Fraser Engineering & Testing, Inc. (FET). The owner of FET, Alexander Fraser, who, at the times material hereto, was a licensed engineer, testified at hearing. Mr. Fraser's testimony is uncontroverted and found to be credible.
FET performed threshold inspections as part of its business, but such inspections comprised a minority part of its business. FET did not engage in any structural design.
Mr. Danforth was the most senior geotechnical engineer for FET in charge of foundation investigations.
Mr. Fraser was the Special Inspector in charge of and responsible for the projects referred to in Mr. Danforth's Application. According to Mr. Fraser, Mr. Danforth supervised all threshold projects for FET and periodically visited project
sites, including the four threshold projects in Mr. Danforth's Application.
As to structural engineering special inspections by FET, Mr. Fraser testified that Mr. Danforth supervised FET's inspectors, who performed the day-to-day inspections, and would perform periodic site inspections to make sure that the day-to- day inspections were being properly made by the inspectors. Mr. Fraser further testified that to make certain that the inspectors were performing in accordance with "proper
engineering," Mr. Danforth had to be "intimately involved in the inspections" by making on-site visits, discussing the projects with the inspectors when they returned at night, and reviewing the daily reports generated on the sites. If the inspectors who performed the day-to-day inspections had questions or problems, they went to Mr. Danforth. At the time for the final reports, Mr. Danforth would sign the final reports, followed by
Mr. Fraser who would sign them as the Special Inspector. Mr. Fraser had complete confidence in Mr. Danforth.
The former operations manager of FET, David Alker, who was employed with FET during the time period of the four threshold projects, testified that all structural inspection issues, regarding the projects, were referred to Mr. Danforth. Mr. Alker's testimony is found to be credible.
The Board presented the testimony of an expert witness, Jose R. Danon, Ph.D., P.E., who was a structural engineer. Among other things, Mr. Danon reviewed Mr. Danforth's Application to DCA for the Special Inspector's license, documents regarding Mr. Danforth's engineering experience, and Florida Administrative Code Rule 9B-3.043, which was the rule, at the time of Mr. Danforth's Application, setting forth the minimum qualifications for the Special Inspector's license.
Mr. Danon testified that Mr. Danforth's Application material did not provide sufficient information for him
(Mr. Danon) to make a determination as to whether Mr. Danforth was qualified for a Special Inspector's license; and that the description of Mr. Danforth's engineering experience was insufficient to make a determination as to whether Mr. Danforth had sufficient engineering experience to qualify for a Special Inspector's license. Accordingly, Mr. Danon opined that
Mr. Danforth failed to meet the minimum qualifications for a Special Inspector's license.
Mr. Danon's opinion is not found to be credible. He is not a Special Inspector and has never applied for or been issued a Special Inspector's license. Mr. Danon essentially testified that, because of the lack of sufficient information, he was unable to make a determination that Mr. Danforth was qualified to be licensed as a Special Inspector. No testimony
was presented by Mr. Danon applying the facts, as he knew them from the documents provided to him by the Board, to the minimum qualifications set forth in Florida Administrative Code Rule 9B-
3.043. Mr. Danon had no knowledge as to how DCA interpreted the said Rule. Moreover, Mr. Danon had no knowledge as to what criteria DCA used to issue Mr. Danforth the Special Inspector's license.
Mr. Danon did not opine in any way, form or fashion that Mr. Danforth submitted false, fraudulent, or misleading information or negligently submitted information regarding his Application and/or engineering experience. Mr. Danon testified that he had no opinion, that he did not know, as to whether the information was false, fraudulent, or misleading. A finding is made that the evidence fails to show that Mr. Danforth submitted false, fraudulent, or misleading information or negligently submitted information for his Special Inspector's license.
Mr. Danon heard the testimony of all the witnesses, including Mr. Danforth. Having heard all of the testimony, Mr. Danon was not called or re-called to testify as to whether his opinion had changed regarding whether Mr. Danforth met the minimum qualifications for a Special Inspector's license in 1996.
The evidence does not show that DCA failed to properly apply the minimum criteria of Florida Administrative Code Rule 9B-3.043.
Mr. Danforth was also a former employee of Professional Engineering and Inspection Company, Inc. (PEICO). He was one of PEICO's professional engineers and Special Inspectors and had become one of its officers.
On January 27, 2003, Mr. Danforth signed and sealed a Threshold Inspection Completion Statement (Completion Statement), as Special Inspector, for a PEICO project, the Jefferson at Camino Real, located in Boca Raton, Florida. The Completion Statement was submitted to the City of Boca Raton Building Department. Mr. Danforth certified in the Completion Statement that "To the best of our knowledge and belief, the construction of all structural load bearing components described in the threshold plan complies with the permitted documents, and the shoring and reshoring conformed with the shoring and reshoring plans submitted to the enforcing agency."
Also, on January 27, 2003, Mr. Danforth signed and sealed a Special Inspector Certificate (Certificate), as Special Inspector for the PEICO project. The Certificate was also submitted to the City of Boca Raton Building Department. The certificate provided Mr. Danforth, with certifying that he agreed “to be present on the project at all times when
construction activities for which I am Special Inspector, to check the work for compliance with approved drawings and applicable codes and ordinances of the City of Boca Raton, and to submit both periodic reports and the Certificate of Completion . . ."
Mr. Danforth was not the original Special Inspector on the PEICO project. Gary H. Elzweig, P. E., was the original Special Inspector for the PEICO project, but he had been fired and was in litigation with PEICO. Mr. Danforth was not on the project as a Special Inspector, so he had not been making periodic on-site inspections, discussing the project with the day-to-day, on-site inspectors, and reviewing reports.
Mr. Danforth testified that, prior to signing the Completion Statement and the Certificate, he conferred with the Board and the City of Boca Raton Building Department to determine what were the necessary requirements to change the qualifying Special Inspector on the project and certify the project. He testified that the Board advised him that the requirements of the local jurisdiction, i.e., the City of Boca Raton, controlled. Mr. Danforth further testified that the City of Boca Raton Building Department advised him that the same documents submitted by the original Special Inspector at the beginning of the project must be re-submitted by the new Special Inspector and that the Completion Statement must be submitted by
the new Special Inspector. Mr. Danforth's testimony is found to be credible.
Furthermore, prior to signing the Completion Statement, Mr. Danforth acted as he thought was "prudent and within the standard duty of care to be able to sign-off" on the project. He reviewed the inspection reports; interviewed all the day-to-day, on-site inspectors to make sure that no remaining issues existed regarding the threshold inspection; and visited the project himself, making an on-site inspection.
Mr. Danforth was satisfied that he could execute the Completion Statement.
On February 3, 2003, Mr. Danforth submitted to the City of Boca Raton Building Department a revised Completion Statement. He certified that Mr. Elzweig was no longer employed by PEICO and no longer the Special Inspector; that he
(Mr. Danforth) was replacing Mr. Elzweig as the Special Inspector; and that "To the best of our knowledge and belief, the construction of all structural load bearing components described in the threshold plan complies with the permitted documents, and the shoring and reshoring conformed with the shoring and reshoring plans submitted to the enforcing agency."
Mr. Danon opined that "any qualified Special Inspector (SI) working for the company PEICO could have signed the Certificate of Completion (COC) for their project as long as the
SI had reviewed and concurred with the documentation Mr. Elzweig had approved during his working relationship with PEICO." Furthermore, Mr. Danon opined that Mr. Danforth committed no wrongdoing in signing the COC.
Mr. Elzweig testified that Mr. Danforth committed no wrongdoing in signing the COC.
The signing of the Completion Statement, or the COC, and the revised Completion Statement by Mr. Danforth is found to be in compliance with the requirements of the local jurisdiction.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2004).
License revocation proceedings are penal in nature.
The Board has the burden of proof to establish by clear and convincing evidence that Mr. Danforth committed the offenses alleged in the Second Amended Administrative Complaint.
Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Mr. Danforth is a professional engineer and, as such, is subject to discipline by the Board. § 471.033, Fla. Stat.
Section 471.033, Florida Statutes (2002), provided in pertinent part:
The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:
* * *
(g) Engaging in fraud or deceit, negligence, . . . or misconduct, in the practice of engineering.
* * *
(3) When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
Denial of an application for licensure.
Revocation or suspension of a license.
Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify.
Restriction of the authorized scope of practice by the licensee.
The Board has defined misconduct. Florida Administrative Code Rule 61G15-19.001 provides in pertinent part:
(6) [M]isconduct in the practice of engineering as set forth in Section 471.033(1)(g), F.S., shall include, but not be limited to:
* * *
(b) Being untruthful, deceptive or misleading in any professional report, statement or testimony whether or not under oath or omitting relevant and pertinent information from such report, statement or testimony when the result of such omission would or reasonably could lead to a fallacious conclusion on the part of the client, employer or the general public.
The Board argues that Mr. Danforth engaged in fraud, deceit or misconduct by including false and misrepresented information in his Application for the Special Inspector's license.
The evidence demonstrates that the DCA, not the Board, licensed Special Inspectors at the time that Mr. Danforth obtained his license; that the Board's expert was not aware of the standards used by DCA to issue the license; and that, in reviewing Mr. Danforth's Application and experience documents, the Board's expert did not apply the minimum standards of qualification for a Special Inspector's license set forth in Florida Administrative Code Rule 9B-3.043. Further, the evidence demonstrates that the Board's expert had insufficient information to make a determination as to whether Mr. Danforth qualified for the license using the standards that he did apply. Also, the evidence fails to demonstrate that DCA failed to properly apply the criteria required for the issuance of a Special Inspector's license.
Hence, the Board failed to demonstrate by clear and convincing evidence that Mr. Danforth engaged in fraud, deceit or misconduct.
The Board has defined negligence. Florida Administrative Code Rule 61G15-19.001 provides in pertinent part:
(4) [T]he 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 engineering principles. Professional engineers shall approve and seal only those documents that conform to acceptable engineering standards and safeguard the life, health, property and welfare of the public. . . .
Mr. Danforth signed a Completion Statement and the Certificate on January 27, 2003, and subsequently, signed a revised Completion Statement on February 3, 2003. All the documents were submitted to the City of Boca Raton. In the Certificate Mr. Danforth certified that he agreed to be "present on the project at all times when construction activities for which I am Special Inspector, to check the work for compliance with approved drawings and applicable codes and ordinances of the City of Boca Raton, and to submit both periodic reports and the Certificate of Completion ".
As to the Completion Statement, the evidence demonstrates that Mr. Danforth's Special Inspector's license was valid, that he was the new Special Inspector on the project, and that, as a Special Inspector with FET, he was authorized to sign the Completion Statement.
Regarding the Certificate, the Board argues that Mr. Danforth failed to be on the PEICO project "at all times,"
and knew or should have known that he was not and could not, and that, therefore, he engaged in negligence or misconduct by signing the Certificate.
The evidence demonstrates that, as the new Special Inspector on the project, Mr. Danforth was advised to sign the Certificate by the City of Boca Raton. It is reasonable to assume that, since periodic reports were required to be submitted to the City of Boca Raton, the project's status of completion was known to the City of Boca Raton when it advised Mr. Danforth to sign the Certificate. Furthermore, the evidence demonstrates that he was authorized, as the new Special Inspector on the project, to sign the Certificate.
Moreover, the evidence demonstrates that, before signing documents, Mr. Danforth, as the new Special Inspector, reviewed the inspection reports; interviewed all the day-to-day, on-site inspectors to make sure that no remaining issues existed
regarding the threshold inspection; and visited the project himself, making an on-site inspection.
Hence, the Board failed to demonstrate by clear and convincing evidence that Mr. Danforth engaged in negligence or misconduct in the practice of engineering.
The Board did not argue that Mr. Danforth violated Florida Administrative Code Rule 61G15-19.001(2)(f)(2002). Therefore, the undersigned considers this alleged violation abandoned by the Board.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Business and Professional Regulation, Board of Professional Engineers enter a final order dismissing the Second Amended Administrative Complaint.
DONE AND ENTERED this 11th day of April 2005, in Tallahassee, Leon County, Florida.
S
ERROL H. POWELL
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2005.
ENDNOTE
1/ Section 471.005, Florida Statutes, provides in pertinent part:
"Board" means the Board of Professional Engineers.
"Board of directors" means the board of directors of the Florida Engineers Management Corporation.
(4) "Department" means the Department of Business and Professional Regulation.
(9) "Management corporation" means the Florida Engineers Management Corporation.
Douglas D. Sunshine, Esquire
David P. Rankin, Esquire
Law Office of David P. Rankin, P. A. 18540 North Dale Mabry Highway
Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and
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 final order in this case.
