Judges: J. LAWRENCE JOHNSTON
Agency: Department of Business and Professional Regulation
Latest Update: May 19, 1986
Summary: Engineer was negligent in relying totally on employed field man to report well on lot for soil report (septic tank permit application). There was no intent to mislead.
85-2684.PDFSTATE OF FLORIDA
DIVISION OF ADMINSTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PROFESSIONAL ) ENGINEERS, )
)
Petitioner, )
)
vs. ) Case No. 85-2684
)
JAMES A. TIPTON, )
)
Respondent. )
)
RECOMMENDED ORDER
The final hearing in this case was held in Punta Gorda, Florida, on February 19, 1986, before the Division of Administrative Hearings by its duly-designated Hearing Officer J. Lawrence Johnston. The following appearances were entered:
APPEARANCES
For Petitioner: Wings Slocum Benton, Esq.
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: John Charles Heekin, Esq.
C-1 Ocean Plaza
21202 Ocean Boulevard
Port Charlotte, Florida 33952
The issue in this case is whether Respondent, James A. Tipton ("Tipton"), committed the allegations contained in the Amended Administrative Complaint, specifically: (1) negligence in the practice of engineering; and/or (2) misconduct in the practice of engineering by 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.
EVIDENTIARY MATTERS
The parties asked for and received until April 11, 1986, in which to file their proposed recommended orders.
At the hearing, Petitioner's Exhibits 1 through 12 were offered and received in evidence. Respondent's Exhibits 1 through 5 also were offered and received in evidence.
FINDINGS OF FACT
At all times material to this proceeding, Respondent, James A. Tipton ("Tipton"), has been a registered professional engineer in the State of Florida, having been issued license number PE 0018147, which expires on January 31, 1987. Tipton employed the services of Robert Corno as a field man for taking samples to establish soil profiles, site characteristics and existing water tables for septic tank applications prepared and filed by Tipton. Corno had actual authority from Tipton to conduct tests, site examinations and evaluations and to submit his findings to Tipton.
Sometime before April 8, 1985, Tipton was retained to perform professional engineering services in connection with the preparation and filing of an application for a septic tank on lot 168, block 3, Charlotte Ranchettes Subdivision in Charlotte County ("lot 168"), owned by Joseph Duseo. Tipton sent Corno to lot 168 on April 13, 1985, to examine and evaluate the site, take soil samples and make other observations that would have to be reported to Tipton in connection with Tipton's work. Corno completed his work and reported to Tipton. Corno did not bring Tipton the actual soil samples.
On April 8, 1985, Duseo's general contractor told Corno about a well on lot 168. When Corno visited the site, he observed the well. The well is an artesian well, about 3 feet high and six inches in diameter. The well is an irrigation-type well and is non-potable. The well was within fifty feet of the drain field of the septic system Tipton proposed for lot 168. The well also is approximately 5 to 10 feet from the north property line.
Corno knew at the time of his visit to the site that the well was not plugged. However, Corno understood that Duseo was in the process of arranging with the Southwest Florida Water Management District to have the well plugged.
Corno did not tell Tipton about the well before Tipton prepared and filed the application for the proposed septic tank.
Therefore, Tipton did not know there was a well on lot 168 when he was preparing the application for the septic tank permit.
Tipton did not ask Corno any questions calculated to reveal whether there was a well on lot 168. Corno held the belief that non-potable wells, especially those that were to be plugged, did not have to be shown on septic tank permit applications.
There was evidence about a survey of lot 168 certified by a land surveyor employed by a firm of professional engineers which did not show any well on lot 168. However, Tipton did not have access to the survey before he prepared the septic tank permit application on lot 168. (The survey bears two dates, April 17 and April 18, and was not signed until April 25, 1985.)
On or about April 15, 1985, Tipton signed and certified the septic tank permit application for lot 168. The application was filed at the Charlotte County Public Health Unit (Health Department) on April 16, 1985.
The application indicates "none" in the space provided to indicate the "location of wells within 75 feet of property lines."
The well on lot 168 is an important consideration which should have been depicted on the application. Septic tank drain fields could pollute a well. Even if Tipton had known that the well was supposed to be plugged, it was not plugged until July 1985. Failure to show the well was a serious omission.
Tipton was negligent for relying on Corno without having an understanding whether Corno would report to him the existence of non-potable wells within 50 feet of the drain field of a septic system or within 75 feet of a property line if the well was likely to be plugged. If he had used due care, Tipton would have either made explicit inquiry of Corno sufficient to reveal the existence of the well or ascertained from Corno in advance that he would report to Tipton the existence of any well within 50 feet of the drain field of a proposed septic system or within 75 feet of property lines. Having failed to exercise due care, Tipton did not realize that Corno would not be reporting to him the existence of a non-potable well which was supposed to be plugged in the future.
A few days after he filed the application, Tipton learned about the well on lot 168. But at about the same time, Duseo and his contractor began discussing construction alternatives that would change the septic system and require a new septic tank application. Therefore, Tipton did not
immediately amend the April 15 application to show the well. In mid-May, Tipton filed a new application for the different septic system. The new application, not in issue in this case, showed the well.
The application also contained a soil profile which probably is not accurate. However, Tipton's soil profile simply reflects the information reported to him by Corno. While Tipton's soil profile does not correspond with soil profiles from other test holes dug in the area of the proposed drain field by the Health Department and an expert witness, the information Corno reported to Tipton was well within the realm of possibilities for soil in the area of lot 168. Corno generally seemed to be a qualified and experienced field man who used proper tools to do his job. There was nothing suspicious about Corno's information, and there was no reason for Tipton to suspect that it was false or fraudulent.
While it is the better practice for a professional engineer to require his field man to deliver the actual soil sample to support a soil profile report, this is not required of professional engineers if there is no reason to suspect that a field man's soil profile report is false or fraudulent.
On the application, Tipton estimated the high water table on lot 168 at 2.2 feet below existing grade. While other expert witnesses estimated a higher high water table, the evidence did not prove that Tipton was negligent in his estimate. Some of the conflicting estimates were Health Department estimates which, the evidence indicates, tend to be high to be on the safe side. Others were estimates on permit applications which may have been influenced by the Health Department's desires and which may not reflect the engineers' actual estimates. Of all the estimates, only Tipton's was supported by testimony how the estimate was derived. (Tipton used what he called Darcy's Law.) Finally, Petitioner's own expert witness testified that Tipton's high water table estimate could not be called negligent.
CONCLUSIONS OF LAW
Section 471.033, Florida Statutes (1985), provides in pertinent part:
The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:
* * *
(g) . . . [N]egligence . . . or misconduct, in the practice of engineering;
* * *
The board shall specify, by rule, what acts or omissions constitute a violation of subsection (1).
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.
* * *
Rule 21H-19.01, Florida Administrative Code, provides in pertinent part:
(3) A professional engineer shall not be negligent in the practice of engineering. The term negligence set forth in 471.033(1)(g), Florida Statutes, is herein defined as the failure by a professional
engineer to utilize due care in performing in an engineering capacity or fail to have due regard for acceptable standards of engineering principles.
* * *
(5) A professional engineer shall not commit misconduct in the practice of engineering. Misconduct in the practice of engineering as set forth in 471.033(1)(g), Florida Statutes, 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 be reasonably could lead to a fallacious conclusion on the part of the client, employer or the general public;
* * *
Under Rule 10D-6.44(3)(a), Florida Administrative Code, any well on lot 168 was required to be shown on the application Tipton prepared on April 15. Non-potable wells and wells expected to be plugged are not exempt and must be shown.
Rule 10D-6.46(1)(d), Florida Administrative Code, requires a setback distance of 50 feet between a non-potable well and a septic tank. If built as shown on the April 15 application before the well was plugged, the septic tank on lot 168 would have violated this rule.
The evidence in this case proved that Tipton failed to utilize due care in relying on Corno to report to him the existence of the well on lot 168. If he had used due care, Tipton would have either made explicit inquiry of Corno sufficient to reveal the existence of the well or ascertained from Corno in advance that he would report to Tipton the existence of any well within 50 feet of the drain field of a proposed septic system or within 75 feet of property lines. Having failed to exercise due care, Tipton did not realize that Corno would not be reporting to him the existence of a non- potable well which was supposed to be plugged in the future.
As reflected in the Findings Of Fact, the evidence did not prove that Tipton was negligent in the preparation of a soil profile for lot 168 or in his estimate of the high water table on lot 168. Tipton was not negligent in relying on Corno as to the soil profile and was not negligent in his own preparation of the high water table estimate.
Although the omission of the well from the application Tipton submitted for lot 168 reasonably could lead to a fallacious conclusion on the part of the general public, Tipton's conduct cannot be labeled "misconduct" under Rule 21H-19.01(5), Florida Administrative Code. As used in the rule, "misconduct" connotes untruthfulness, deception or misleading. On the evidence of this case, Tipton was none of those, only negligent.
The decision in O. P. Corporation v. Lewis, 373 So. 2d 929 (Fla. 4th DCA 1979), does not stand for the proposition that a licensee is strictly responsible for the negligence or wrongdoing of his employees so as to subject the licensee to discipline. That case only confirms that an employer, whether or not a licensed professional, is civilly liable for damages resulting from the negligence or wrongdoing of his employees.
The two legal propositions are separate and distinct. Cf. Surf Attractions, Inc. v. Department of Business Regulation, 480 So.2d 1354 (Fla. 1st DCA 1985), and cases cited in it.
RECOMMENDATION
Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Professional Engineers enter a final order holding Respondent, James A. Tipton, guilty of negligence in the practice of engineering under Count I of the Amended Administrative Complaint (but dismissing Count II of the Amended Administrative Complaint) and imposing an administrative fine in the amount of five hundred dollars ($500.00).
RECOMMENDED this 19th day of May, 1986, in Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32399
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986.
COPIES FURNISHED:
Ms. Sarah Logan Executive Director
Board of Professional Engineers
130 North Monroe Street Tallahassee, FL 32301
Mr. Fred Roche Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, FL 32301
Salvatore A. Carpino, Esq. General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, FL 32301
Wings Slocum Benton, Esq. Department of Professional
Regulation
130 North Monroe Street Tallahassee, FL 32301
John Charles Heekin, Esq. C-1 Ocean Plaza
21202 Ocean Blvd.
Port Charlotte, FL 33952
APPENDIX
The following are specific rulings on all the parties' proposed Findings of Fact as required by Section 120.59(2), Florida Statutes (1985).
Rulings on Petitioner's Proposed Findings of Fact
Petitioner's Proposed Findings of Fact 1 through 3, 9, 10, 13 through 16, 19, 21 and 22 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary.
Petitioner's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the last sentence is unnecessary.
Petitioner's Proposed Finding Of Fact 5 would have been included in paragraph 1 above except that the third sentence is unnecessary.
Petitioner's Proposed Findings Of Fact 17, 18 and 27 would have been included in paragraph 1 above except that they are unnecessary.
Petitioner's Proposed Finding Of Fact 26 would have been included in paragraph 1 above except that whether Alligator Creek is a "significant" drainage feature would depend on the definition of "significant" which was not established by the evidence. In addition, Petitioner's Proposed Finding Of Fact 26 is unnecessary.
Petitioner's Proposed Findings Of Fact 6 through 8 are rejected as conclusions of law and because the last sentence of Proposed Finding Of Fact 6 is cumulative.
Petitioner's Proposed Finding Of Fact 11 is rejected because the first sentence is contrary to the greater weight of the evidence and Findings Of Fact and the second sentence is, subordinate to Findings Of Fact.
Petitioner's Proposed Findings Of Fact 12, 20, 23 and 24 are rejected as subordinate to Findings Of Fact.
Petitioner's Proposed Finding Of Fact 25 is rejected because the first sentence is subordinate to Findings Of Fact and the second sentence is contrary to the greater weight of the evidence.
Rulings on Respondent's Proposed Findings of Fact.
Respondent's Proposed Findings Of Fact 1 through 3, 5 and 12 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary.
Respondent's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the second sentence is unnecessary.
Respondent's Proposed Finding Of Fact 8 would have been included in paragraph 1 above except that it is unnecessary.
Respondent's Proposed Finding Of Fact 9 would have been included in paragraph 1 above except that it is in part unnecessary.
Respondent's Proposed Finding Of Fact 11 would have been included in paragraph 1 above except that it is contrary to the greater weight of the evidence and Findings Of Fact that there is
"no way" for an engineer to avoid relying on a field man's error such as Corno's error in omitting to report the existence of the well.
Respondent's Proposed Finding Of Fact 14 would have been included in paragraph 1 above except that it is irrelevant.
Respondent's Proposed Finding Of Fact 6 is rejected because it is subordinate to Findings Of Fact and is unnecessary.
Respondent's Proposed Finding Of Fact 7 is rejected because it is simply a recitation of conflicting evidence, some of which is accepted but some of which is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, it was found that Corno did not tell Tipton about the well and that Tipton did not have the survey in his possession at the time the application was filed.
Respondent's Proposed Finding Of Fact 10 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, the evidence supported a finding of negligence on the part of Tipton for failure to utilize due care and to have due regard for acceptable standards of engineering principles whether or not practicing in Charlotte County. In addition, Mr. Murray's expert testimony must be disregarded because it was given upon a hypothetical assumption that an engineer had possession of a sealed survey showing no improvements on the property as the time of the application, a fact not proved by the evidence.
Respondent's Proposed Finding Of Fact 13 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, personnel in the Health Department, part of the "general public," were misled. (The general public also reasonably could have been led to a fallacious conclusion, but there was no "misconduct" on Tipton's part. See Conclusions of Law.)
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION
BOARD OF PROFESSIONAL ENGINEERS
DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA BOARD OF PROFESSIONAL ENGINEERS
Petitioner,
vs. DOAH CASE NO. 85-2684
DPR CASE NO.0058289
JAMES A. TIPTON,
Respondent.
/
FINAL ORDER
THIS CAUSE came on to be heard before the Florida Board of Professional Engineers at a regular scheduled meeting held in Tallahassee, Florida on August 27, 1985.
APEARANCES
For Petitioner: Wings Slocum Benton, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: John Charles Heekin, Esquire
C-1 Ocean Plaza 21202 Ocean Blvd.
Port Charlotte, Florida 33952
On May 19, 1986, Hearing Officer, J. Lawrence Johnson entered his Recommended Order in the above styled cause. On May 30, 1986, Exceptions to the Recommended Order were filed by Respondent. On July 21, 1986, a Response to the Exceptions was filed by Petitioner. As a result of error on the part of staff to transmit the entire record to the appropriate Board members prior to the Board's July 31, 1986 meeting in Tarpon Springs and the fact that Respondent was required to attend that meeting,
wherein no action could be taken as a result of the staff error, a Motion to Tax Attorney Fees and Costs was filed by Respondent's counsel on August 12, 1986. Finally, an oral motion was made at the Board meeting of August 27, 1986, that the board dismiss this disciplinary action against Respondent, insofar as a final order had not been rendered within 90 days of the entry of the Recommended Order by the Hearing Officer in this cause.
The motion to set aside the Recommended Order of the Hearing Officer and to dismiss this cause for failure to follow the requirements of F.S. 120.59(3), in that a final order was not rendered in this cause within 90 days subsequent to the issuance of the Recommended Order of the Hearing Officer is hereby DENIED. There has been no showing that the delay in question impaired either the fairness of the proceedings or the correctness of the action taken by the Board in this cause, see G & B of Jacksonville Inc vs. Florida Department of Business Regulations, Division of Beverage, 362 So.2d 951 (Fla 1st DCA 1978), Appeal Dismissed 372 So. 2d 468 (Fla, 1979) and Department of Business Regulations, Division of Pari-Mutual Wagering vs.
Hyman 417 So. 2d 671 (Fla 1982). In denying this Motion to Dismiss, the Board is cognizant of the proffer made by Respondent that the delay in resolving this disciplinary proceeding has cause him personal physical distress as well as detriment to his professional standing, however, the pendency of any disciplinary proceedings contained these elements of potential damage to a Respondent and such "general inconvenience" is not sufficient to show impairment of the fundamental fairness of the proceedings or of the correctness of the final order issued by the Board. It is further to be noted that this cause could initially have been heard in June, 1986, however, it was initially continued until the July meeting as a result of a apparent agreement between the Petitioner and Respondent, based on a conflict of attorney's schedules, which, in light of the staff error in failing to provide the complete transcript and record to the appropriate members of the board at the July meeting, resulted in a delay in the issuance of the final order in excess of the 90 days set forth in F.S. 120.59(3).
Turning to the Exceptions filed by Respondent in the instant cause, the Board, after a complete review of the record including the transcript and exhibits, determined that Exceptions 1 through
3 contained in the Exceptions to Recommended Order dated May 30, 1986, should be denied insofar as, competent substantial evidence exist to support the Findings of Fact of the Hearing Officer for the reasons set forth in Paragraphs 3 through 5 of Petitioners response to Respondent's Exceptions to the Findings of Fact in the Recommended Order.
The Board further determined, with two members disserting, to deny Exceptions #4 and #5 to propose Findings of Fact 11 and
proposed Conclusion of Law #5, insofar as, in the opinion of the Board, the Hearing Officer's statement of the standard duty required of a professional engineer set forth in the above mentioned paragraphs of his Recommended Order is appropriate in light of the standard set forth in Rule 21H-19.01(3) F.A.C., and further finds that the Hearing Officer's conclusion that Respondent was negligent in failure to exercise due diligence in the profession of engineering is correct and based upon the testimony of Donald Smalley at pages 113 through 117 and pages
123 through 125 of the transcript.
The Board further determined that Respondent's Exception #6 is not well taken as an Exception, but is merely a restatement of the position, concurred in by the Board, that, by itself, financial liability for negligent acts of an employee does not imposed strict liability upon an engineer in the professional regulatory arena. The Board is in agreement with the general proposition, set forth by the Hearing Officer in Paragraph 8 of his Conclusions of Law, that a failure to exercise due diligence on the part of professional engineer is a necessary element for a finding of professional responsibility for improper acts on the part of a professional engineer. The board specifically rejects the argument made during the oral presentation of Respondent, that negligence in professional regulatory proceedings requires a showing of monetary damages prior to a violation of Chapter 471 and the rules promulgated thereto being shown. As noted in Rule 21R-19.01(3), defining the term negligence as that term is used in F.S. 471.033(1)(9), and promulgated pursuant to legislative direction in F.S. 471.033(2), a showing of monetary loss on the part of a client is not necessary to show that a professional engineer or any professional has been negligent in the practice of his profession. Such monetary loss or lack thereof could only be considered in mitigation of any penalty imposed. It is the position of the Board that the legislative, by regulating the profession of engineering and in determining that the public safety is in danger by negligent or otherwise incompetent engineers (see F.S 471.001) did not intend that an engineers negligence could be excused simply because no pecuriary victim could be identified.
After disposing of the Exceptions as set forth herein the Board accepted the Findings of Fact and the Conclusions of Law of the Rearing Officer, with two members dissenting, and found that a violation of F.S. 471.033(1)(9) and Rule 21R-19.01(3) has been shown by clear and convincing evidence. The Board agrees with the Rearing Officer that no violation of any other provisions of Chapter 471 or the rules promulgated thereto has been proven by the Petitioner.
As to the motion to Tax, Attorney's Pees and Costs, it is the Board's position that the Motion is well taken and is reasonable in its amount and justification. The Board therefore recommends to the Secretary of the Department of Professional Regulation, that an award in the amount of $1, 034 (representing attorney's fees and cost for Respondents attendance at the abortive July 31, 1986 hearing) be dispensed to Respondent's counsel.
Wherefore, based upon the foregoing it is hereby ORDERED AND ADJUDGED that Respondent be and the same is found to be in violation of F.S. 471.033(1)(9) and Rule 21R-l9.O1(3) F.A.C.
The Recommendation of the Hearing Officer that a $500.00 fine be imposed is hereby modified based upon the circumstance, set forth in the record, that Respondent relied upon the skill and expertise of an admittedly experienced field man and in good faith determined, albeit negligently that explicit direction to the field man as to the existence or non-existence of wells on the property and the need for showing such wells in any report filed with the permitting authority in this cause was not necessary. Therefore, it is determined by the Board that the proposed fine of $500.00 is hereby imposed, however, said fine is hereby Suspended and will become null and void so long as Respondent completes satisfactorily the Study Guide on the Law and Rules governing the practice of professional engineering in the State of Florida, prepared by the Board of Professional Engineers within 90 days of the issuance of this order.
DONE AND ORDERED this 5th day of September, 1986.
Edward A. Lobnitz Chairman
COPIES FURNISHED:
Wings Benton, Esquire
John Charles Heekin, Esquire
Docket for Case No: 85-002684
Orders for Case No: 85-002684
| Issue Date |
Document |
Summary |
|
Sep. 05, 1986 |
Agency Final Order
|
|
|
May 19, 1986 |
Recommended Order
|
Engineer was negligent in relying totally on employed field man to report well on lot for soil report (septic tank permit application). There was no intent to mislead.
|
