STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT CORPORATION,

Petitioner,

vs.

ALAN D. STOKES,

Respondent.

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) Case No. 05-4338

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RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) held a formal hearing in this cause in Tallahassee, Florida, on January 27, 2006.

APPEARANCES

For Petitioner: Bruce A. Campbell, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

For Respondent: William H. Hollimon, Esquire

Moyle, Flanigan, Katz, Raymond, White and Krasker, P.A.

The Perkins House

118 North Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issues for determination are whether Respondent, by holding himself out as an expert witness and testifying as an expert witness, engaged in the unlicensed practice of engineering.

PRELIMINARY STATEMENT

On or about October 24, 2005, the Florida Engineers Management Corporation (Petitioner), filed an Administrative Complaint charging Respondent with the unlicensed practice of engineering associated with Respondent’s holding himself out as an expert witness and providing expert witness testimony in the case of Brown v. Daimler Chrysler Corp., Case No. 3:03-0676, United States District Court, Middle District of Tennessee (the “Tennessee Case”).

Petitioner timely requested a formal administrative hearing with regard to the two charges in the Administrative Complaint.

Subsequently, on November 28, 2005, the case was forwarded to DOAH for formal proceedings.

During the final hearing, Petitioner presented three exhibits and no witnesses. Respondent presented one expert witness and two exhibits. The transcript of the proceedings was filed with DOAH on January 24, 2006.

References to Florida Statutes denote the 2005 edition

unless otherwise noted.

FINDINGS OF FACT

1. Respondent is a 1993 graduate of the University of Florida with a Bachelor of Science in electrical and computer engineering and is pursuing a Ph.D. in safety engineering from

   Kennedy Western University. Respondent is not a licensed professional engineer in Florida.

2. Respondent is a member of three professional organizations: 1) Institute of Electrical and Electronic Engineers (IEEE); 2) Society of Automotive Engineers (SAE); and

   3) Accident Reconstruction Network (ARC). IEEE and SAE require a degree in engineering for membership, but do not require professional licensure.

3. Generally, professional organizations for engineers require an engineering degree from an accredited engineering program, but do not require licensure as a condition of membership. Thus, membership in a professional organization such as IEEE does not tend to indicate that a member holds a license to practice engineering.

4. No competent evidence was presented that Respondent uses engineering designations, titles and devices tending to indicate that Respondent holds an active license as an engineer in Florida.

5. Respondent has gained experience in the areas of mechanical and electrical engineering through education, and training. He holds himself out as experienced and qualified to provide expert witness services in many fields related to engineering basic principles. Respondent gained much of his

   engineering experience in positions that are exempt from the licensure requirement.

6. Respondent does not hold himself out as a professional, or licensed engineer.

7. Graduates of accredited engineering programs are commonly referred to as “engineers” by universities and potential employers.

8. Respondent purports to possess expertise as a forensic consultant, accident reconstructionist, and forensic computer expert. Respondent does not hold himself out as an “engineer” or a “licensed” or “professional” engineer.

9. Attorney Debra Wall (“Wall”) retained Respondent to provide expert witness services in the Tennessee Case. In providing such services, Respondent never held himself out as a licensed engineer or as a professional engineer. In seeking to obtain an expert witness, Wall did not initially put any weight on professional licensure as a requirement to provide expert testimony.

10. Respondent generated two written reports and was deposed regarding these reports in the Tennessee Case.

11. Respondent’s expert witness testimony consisted only of giving opinions based on observation, not on engineering theory or testing.

12. Respondent performed no calculations in support of his opinions in the Tennessee Case.

13. Respondent’s opinions were directed to a discrete litigation event – the Tennessee Case - and do not implicate the health, safety, or welfare of the public in general, or to the citizens of Florida in particular.

14. Engineering analysis consists of complex scientific analysis of collected data or material. In a case like the Tennessee Case, engineering analysis would consist of the performance of scientific discovery based upon mathematics, physics, or engineering and/or a statistical evaluation of seatbelts for the make and model of automobile in question to determine seatbelt-related failure modes and rates.

15. Respondent’s written reports in the Tennessee Case do not contain engineering analysis; rather, they are based only upon observation and opinion.

16. Respondent’s opinions in the Tennessee Case do not constitute engineering analysis.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

18. Petitioner is a not-for-profit agency created pursuant to Section 471.038, Florida Statutes, responsible for policing the unlicensed practice of engineering in the State of Florida.

19. The practice of engineering is regulated in Florida by Chapter 471, Florida Statutes. The express purpose underlying the regulation of the practice of engineering is to protect the public health and safety. See § 471.001, Fla. Stat.

20. The State of Florida does not regulate the practice of engineering in Tennessee. The State of Tennessee has adopted its own regulatory scheme with respect to engineering licensure. See § 62-2-101 et seq., Tennessee Code.

21. The unlicensed practice of engineering in Florida is a misdemeanor (see Section 471.031(2), Florida Statutes), and also is subject to an administrative fine of up to $5,000 per count. (See § 471.033(3)(c), Fla. Stat.)

22. Petitioner has charged Respondent with two counts of violation of Section 471.031(1)(a), which provides that “[a] person may not: Practice engineering unless the person is licensed or exempt from licensure under this chapter.”

23. The term "engineer" is defined in Subsection 471.005(5), Florida Statutes, which provides the following:

    "Engineer" includes the term "professional engineer" and “licensed engineer” and means a person who is licensed to engage in the practice of engineering under this chapter.

24. The term "engineering" is defined in Subsection 471.005(7), Florida Statutes, which provides the following:

    "Engineering" includes the term "professional engineering" and means any service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning, and design of engineering works and systems, planning the use of land and water, teaching of the principles and methods of engineering design, engineering surveys, and the inspection of construction for the purpose of determining in general if the work is proceeding in compliance with the drawings and specifications, any of which embraces such services or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects, and industrial or consumer products or equipment of a mechanical, electrical, hydraulic, pneumatic, or thermal nature, insofar as they involve safeguarding life, health, or property; and includes such other professional services as may be necessary to the planning, progress, and completion of any engineering services. A person who practices any branch of engineering; who, by verbal claim, sign, advertisement, letterhead, or card, or in any other way through the use of some other title, implies that he or she is an engineer or that he or she is licensed under this chapter; or who holds himself or herself out as able to perform, or does perform, any engineering service or work or any other service designated by the practitioner which is recognized as engineering shall be construed to practice or offer to practice engineering within the meaning and intent of this chapter.

25. The definition of “engineering” in Section 471.005(7) includes the term “engineer,” which must be interpreted consistent with the definition of “engineer” provided in Section 471.005(5). Applying this construction, “engineering” includes “[a] person who practices any branch of engineering; who, by verbal claim sign, advertisement, letterhead, or card, or in any other way through the use of some other title, implies that he or she is a[] [professional engineer or licensed engineer] or that he or she is licensed under this chapter.” No competent evidence was presented that Respondent “practices any branch of engineering” or that Respondent implies that he is a professional or licensed engineer.

26. The term “practice engineering” is not specifically defined in Chapter 471. Persons who are not duly licensed engineers are prohibited from practicing engineering in Florida. See §§ 471.003(1) and 471.031(1)(a), Fla. Stat.

27. The definition of “engineering” does not by its terms include the giving of expert testimony at a trial or judicial proceedings, or the serving as an engineering expert to a litigant or to an interested party in anticipation of litigation. Further, Chapter 471 does not otherwise contain any requirement that expert testimony be provided only by licensed engineers. In contrast, Florida’s legislature has expressly provided in Section 766.102(5), Florida Statutes (medical

    negligence litigation), that expert witness testimony may only be provided by a “licensed health care provider.”

28. Although the issue has not been directly addressed in Florida, courts in other states have determined that providing expert witness testimony does not constitute the unlicensed practice of engineering. See Owens v. Payless Cashways, Inc., 670 A. 2d 1240, 1243-44 (R.I. 1996); Iowa State Bd. Of Engineering v. Olson, 421 N.W. 2d 523, 525 (Iowa 1981); Lance v. Luzerne County Mfrs. Ass’n, 77 A. 2d 386, 388 (Pa. 1951); State v. Willian, 423 N.E. 2d 668, 671 (Ind. 1981); Wright v. Las

    Vegas Hacienda, Inc., 720 P.2d 696, 697 (Nev. 1986).

    
    

29. The stated purpose of Chapter 471 is pragmatic – to protect the “public health and safety.” This stated purpose establishes the parameters of what constitutes the practice of engineering, with activities that serve this overriding purpose falling inside the parameters, and activities which do not, falling outside them. Because Respondent, through provision of expert witness services, does not provide services having a direct effect on public health and safety, these services fall outside the definition of engineering in Chapter 471 and do not constitute the unlicensed practice of engineering. Further, since it is axiomatic that because providing expert witness services does not constitute the practice of engineering,

    offering to provide such services also cannot constitute the practice of engineering.

30. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

31. The nature of clear and convincing evidence has been described as follows:

    [C]lear 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.

    
    

    Inquiry Concerning Davey, 645 So.2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

32. Petitioner failed to meet its burden of proof.

    
    

33. Offering expert witness services which do not implicate the health, safety, and welfare of Florida citizens does not constitute the unlicensed practice of engineering in Florida.

34. Providing expert witness services in support of litigation in Tennessee cannot constitute the provision of engineering services in Florida.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 29th day of March, 2006.

COPIES FURNISHED:

Bruce A. Campbell, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

William H. Hollimon, Esquire

Moyle, Flanigan, Katz, Raymond, White and Krasker, P.A.

The Perkins House

118 North Gadsden Street Tallahassee, Florida 32301

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and

Professional Regulation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Doug Sunshine, Esquire

Vice President for Legal Affairs

Florida Engineers Management Corporation 2507 Callaway Road

Tallahassee, Florida 32303-5267

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 final order in this case.

Docket for Case No: 05-004338

Orders for Case No: 05-004338