STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF ) PROFESSIONAL ENGINEERS AND LAND ) SURVEYORS, )

)

Petitioner, )

)

vs. ) CASE NO. 78-002

)

DAVID F. RAMSEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 24 April 1979 at Clearwater, Florida.

APPEARANCES

For Petitioner: Ford L. Thompson, Esquire

Post Office Box 1876 Tallahassee, Florida 32303

For Respondent: Thomas E. Cone, Jr., Esquire and

L. M. Blain, Esquire Post Office Box 399 Tampa, Florida 33601

By Administrative Complaint filed 28 November 1977 the Florida State Board of Professional Engineers and Land Surveyors, Petitioner, seeks to revoke, suspend or otherwise discipline the professional engineering registration and land surveying registration of David F. Ramsey, Respondent. As grounds therefor it is alleged that Respondent failed to avoid a conflict of interest situation and failed to disclose a possible conflict of interest to his client while operating a testing laboratory; signed a certificate certifying a subsoil percolation test when no such test was made by him; and made gross design errors in specifications for roads and drainage in the Reuben Industrial Park project in Clearwater, Florida.

At the beginning of the hearing, Petitioner dismissed the charges relating to conflict of interest and design errors, leaving only the charge of falsely certifying a percolation test. Thereafter, 4 witnesses were called by Petitioner, 5 witnesses were called by Respondent, and 3 exhibits were admitted into evidence.

Considerable evidence was presented by both parties relative to the charges which were dismissed, and that evidence is disregarded.

Proposed findings of fact submitted by Petitioner and Respondent not included in the findings below were either not supported by a preponderance of the evidence or deemed unnecessary to the conclusions reached.

FINDINGS OF FACT

1. David F. Ramsey, Respondent, is a registered professional engineer holding registration No. 15307 and a registered land surveyor holding registration No. 2545 and at all times relevant hereto he was so registered.

   
   

2. In April 1974 Respondent was President and qualifying professional engineer for Ramsey and Associates, Inc. , the engineering firm retained to prepare plans and specifications for a mobile home park known as Heritage Village.

   
   

3. Approved financing for this project was near expiration date and the plans had not been approved by Indian River County officials. Before the plans for the sewage treatment plant and percolation pond associated therewith could he approved, a subsoil percolation test was required.

   
   

4. On April 24, 1974, Respondent, in company with Larry Brown, General Manager of Brown Testing Laboratory, a wholly owned subsidiary of Ramsey and Associates, Inc., proceeded to the site of the Heritage Village project. There five test holes were dug to obtain subsoil conditions and prepare Subdivision Analysis Form (Exhibit l) for submission to Indian River County so the plans could be approved.

   
   

5. No hole was dug deeper than 3.2 feet. Brown testified only a posthole digger was available for digging while Respondent recalled a hand auger also being available. Since Brown did the digging, his memory may be the better. During the procedure, Respondent took notes as the holes were excavated. Hardpan was found 2-1/2 to 3 feet below the surface, but the thickness of this hardpan was not ascertained. No water was put in the holes to ascertain the percolation rate for the subsoil.

   
   

6. After the testing was completed, Respondent and Brown retired to the Holiday Inn for lunch where Respondent prepared page 4 of Exhibit 1, which is titled "Survey of Subsoil Conditions". Thereon for the 5 holes reported he included the percolation time for water in the test holes to drop one inch. These figures were estimated by Respondent based upon the type of soil observed in the holes. These figures were certified by Respondent to be representative of existing subsoil conditions at the time the test was made. It is this certification, which was submitted to Indian River County to get the plans approved, which forms the basis for the charge here under consideration.

   
   

7. While Respondent was under investigation, and after being fully advised of his rights, he told an investigator that he had estimated the percolation rates because no water was available in the vicinity and submission of the subsoil report was urgent due to the financing deadline.

   
   

8. In his defense, Respondent did not deny the percolation figures submitted on Exhibit 1 were estimates rather than the measurements they purported to be, but contended that the percolation rates and subsoil conditions shown on Exhibit 1 accurately represent conditions as they existed. Evidence to support this position was included in the tests conducted and reported in Exhibit 3.

9. Standard procedure for taking percolation tests is to fill the hole with water and observe the time it takes the water level to drop three inches. It is also standard to dig a 6-foot deep hole. Here it was testified that hardpan prevented the hole depth from exceeding 3.2 feet. However, when a proper test was made shortly before the hearing, no difficulty was encountered getting to a depth of 6 feet using a hand auger. It is difficult to dig deeper than about 3 feet with a posthole digger.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

11. Grounds for disciplinary action against Professional Engineers are contained in Section 471.26, Florida Statutes, which provides in pertinent part:

    
    

    1. The board shall have the power to revoke or suspend a certificate of registration .

       or place . . . on probation . . . should a registrant . . . be found guilty of:

       (b) Any gross negligence, incompetence, or misconduct, in the practice of engineering as a professional engineer.

       (d) Violation of any of the rules of pro- fessional conduct adopted and promulgated by the board or violation of rules or regulations made by the board pursuant to law.

       
       

12. Grounds for disciplinary action against Land Surveyors are contained in Section 472.10, Florida Statutes, which provides in pertinent part:

    
    

    (3)(a) The board may revoke or suspend a certificate of registration of a land surveyor for:

    3. Malpractice, malfeasance, gross carelessness or gross incompetence in the practice of land surveying;

    7. The violation of any law of this state relating to the practice of land surveying or any lawful rule or regulation made by the board pursuant to law.

    
    

13. Rules for Conduct of Professional Engineers are contained in Chapter 21H-14, Florida Administrative Code. Rule 21H-14.05(1), Florida Administrative Code, provides:

    
    

    The Engineer shall not be untruthful, deceptive or misleading in any professional report, statement or testimony, whether or not under oath, nor shall he knowingly omit relevant and pertinent information from such report, statement or testimony when the result of such omission would or reasonably could lead to a fallacious con- clusion.

14. Here the percolation rates submitted on Exhibit 1 were fabricated and submitted for the purpose of inducing Indian River County officials to approve plans and specifications. This constitutes misconduct in the practice of professional engineering. Additionally, this conduct violates the provisions of Rule 21H-14.05(1), Florida Administrative Code, above quoted.

    
    

15. It is noted that in certifying the report submitted as Exhibit 1, Respondent did so as a Professional Engineer not as a Land Surveyor. None of the actions of Respondent for which disciplinary action is here sought involved the profession of Land Surveyors. But for the fact that both Professional Engineers and Land Surveyors are regulated by the same board, there is no more basis in the facts here involved for disciplining Respondent's Land Surveyor's registration than there would be in taking disciplinary action against Respondent's architect's registration, contractor's license, etc. if he were also licensed and registered by these other professions. cf. Lester v. Department of Professional and Occupational Regulation, 348 So.2d 923 (Fla. 1 DCA 1977).

    
    

16. From the foregoing it is concluded that David F. Ramsey, in his capacity of a professional engineer, prepared a subsoil analysis report without following procedures necessary to submit an accurate report, that he did so knowingly, and that he submitted this report to Indian River County officials for the purpose of getting plans and specifications approved by the County. In so doing, David F. Ramsey was guilty-of misconduct in the practice of professional engineering and a violation of the Rules of Conduct for Professional Engineers, specifically Rule 21H-14.05(1) , Florida Administrative Code. It is therefore

RECOMMENDED that David F. Ramsey's registration as a Professional Engineer be suspended for a period of six (6) months.

Entered this 15th day of May, 1979.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Ford L. Thompson, Esquire

P. O. Box 1876

Tallahassee, Florida 32303

Thomas E. Cone, Jr., Esquire and

L. M. Blain, Esquire

P. O. Box 399

Tampa, Florida 33601

Docket for Case No: 78-000002

Orders for Case No: 78-000002