STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD ) OF PROFESSIONAL ENGINEERS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0543

)

WILLIAM E. OVERSTREET, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 19, 1988, at Fort Walton Beach, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing, the parties were as follows:

For Petitioner: Charles F. Tunnicliff, Esquire Chief Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Mr. William E. Overstreet, pro se

7 Hughes Avenue

Fort Walton Beach, Florida 32548 ISSUES AND INTRODUCTION

The issues in this case are whether, as alleged in an Amended Administrative Complaint signed January 14, 1987, the Respondent violated the provisions of Section 471.025(3), Florida Statutes, by signing and sealing plans depicting work that he is not licensed or qualified to do; whether the Respondent has engaged in misconduct in the practice of professional engineering in violation of Section 471.033(1)(g), Florida Statutes, by signing and sealing plans depicting work which is beyond the scope of his licensure, training, and expertise, and by violating a law of the State of Florida directly regulating the practice of engineering; and whether the Respondent violated the provisions of Section 471.033(1)(g), Florida Statutes, by negligently preparing electrical, mechanical, and structural engineering plans.

At the hearing, the Petitioner presented the testimony of several witnesses and offered several exhibits which were received. The Respondent called two witnesses, offered two exhibits which were received, and also testified on his own behalf. Subsequent to the hearing, a transcript of the proceedings was filed and, by agreement of the parties, the deadline for filing proposed recommended orders was set as March 16, 1988. The Petitioner filed a timely proposed recommended order. The Respondent's proposed recommended order was

filed two days late, but has nevertheless been considered during the formulation of this recommended order. The findings of fact proposed by the parties are specifically addressed in the appendix to this recommended order.

FINDINGS OF FACT

Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact.

1. The Respondent has been licensed as a professional engineer in the State of Florida since 1964 (license number PE 0010812), having become licensed by examination in the field of mechanical engineering. He has practiced professional engineering since 1964 in and around Fort Walton Beach and Okaloosa County, Florida, as an individual practitioner and as an officer of the Royster Construction Company.

   
   

2. The Respondent's formal education and professional experience are in the fields of civil, structural, and mechanical engineering.

   
   

3. Although testimony indicates that the Respondent has had some contact with the field of electrical engineering, he lacks significant formal education or professional experience in that specialty.

   
   

   Findings regarding Count I

   
   

4. In July 1984 plans for a proposed project to be known as the White Sands Bowling Center were prepared, signed, and sealed by the Respondent in his capacity as a professional engineer.

   
   

5. The plans included sheets numbered 1 through 9, of which sheet number 6 and sheet number 9 depict electrical components of the proposed structure.

   
   

   Findings regarding Count II

   
   

6. The electrical engineering plans (sheet number 6 and sheet number 9) contain errors and omissions including the following:

   
   

   1. The "symbol legend" necessary to define components depicted on the plans has been omitted.

      
      

   2. Fixture types and wattage specifications necessary to determine adequate and appropriate loading of circuits have been omitted.

      
      

   3. Electrical component and fixture circuit identification numbers necessary to identify such components and fixtures have been omitted.

      
      

   4. Specifications necessary to determine air conditioning connections have been omitted.

      
      

   5. Details of fire alarm circuitry required by applicable building codes in force at the time of design have been omitted.

      
      

   6. Emergency exit fixtures and circuitry required by applicable building codes in force at the time of design have been omitted.

   7. Electrical panel details necessary to complete construction have been omitted.

      
      

   8. Details of connections necessary for installation of indicated aluminum wiring have been omitted.

      
      

   9. The specification depicted for grounding of the electrical system is not in compliance with applicable building codes in force at the time of design.

      
      

   10. The electrical riser depicted on the plans is incomplete and does not provide sufficient information to complete construction.

       
       

7. The Respondent failed to meet a standard of due care in the preparation of the plans depicting electrical engineering for the White Sands Bowling Center and was negligent in his preparation of those plans.

   
   

   Findings regarding Count III

   
   

8. The mechanical engineering plans (sheet number 7, air conditioning, and sheet number 8, plumbing) contain errors and omissions including the following:

   
   

   1. Specifications of air conditioning units and associated ducting are in conflict and do not provide details necessary to complete construction.

      
      

   2. Details showing "returns" from outside air are in conflict with known standards of design and do not provide details sufficient to complete construction.

      
      

   3. Specifications of condensation features do not provide sufficient detail to complete construction and are not in compliance with applicable building codes in force at the time of design.

      
      

   4. Toilet exhaust system details are not sufficient to complete construction and are not in compliance with applicable building codes in force at the time of design.

      
      

   5. Details of water supply system source and sanitary collection and disposal required by applicable building codes in force at the time of design have been omitted.

      
      

9. The Respondent failed to meet a standard of due care in the preparation of the plans depicting mechanical engineering for the white Sands Bowling Center and was negligent in his preparation of those plans.

   
   

   Findings regarding Count IV

   
   

10. The structural engineering plans (sheet number 3) do not contain details sufficient to complete construction, and if built as designed, there is no reasonable assurance that the structure would comply with applicable building codes in force at the time of design.

    
    

11. The Respondent failed to meet a standard of due care in the preparation of the plans depicting structural engineering for the White Sands Bowling Center and was negligent in his preparation of those plans.

    CONCLUSIONS OF LAW

    
    

12. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

    
    

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

    
    

14. The Petitioner has the burden of proving the allegations of the Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

15. Section 471.025(3), Florida Statutes, reads as follows:

    
    

    (3) No registrant shall affix or permit to be affixed his seal or name to any plan, specification, drawing, or other document which depicts work which he is not licensed to perform or which is beyond his profession of specialty therein.

    
    

16. Section 471.033(1) and (2), Florida Statutes, reads as follows, in pertinent part:

    
    

    1. The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:

       
       

       (a) Violation of any provision of

       s. 471.031 or s. 455.227(1) or any other provision of this chapter.

       . . . .

       (g) Fraud or deceit, negligence, incompetence, or misconduct, in the practice of engineering.

       . . . .

    2. The board shall specify, by rule, what acts or omissions constitute a violation of subsection (1).

       
       

17. Subsections (3) and (5) of Rule 21H-19.001, Florida Administrative Code, read as follows, in pertinent part:

    
    

    1. 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 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.

    . . . .

    (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:

    . . . .

    (d) affixing a signature or seal to any engineering plan of [or] document in a subject matter over which a professional engineer lacks competence because of inadequate training or experience;

    . . . .

    (n) violation of any law of the State of Florida directly regulating the practice of engineering;

    
    

18. The Petitioner has proved by clear and convincing evidence that the Respondent signed and sealed plans depicting electrical engineering for the White Sands Bowling Center project, which work is beyond the scope of his professional specialty. The Petitioner also proved by clear and convincing evidence that the Respondent lacks competence in the field of electrical engineering because of inadequate training or experience. The signing of the plans under such circumstances constitutes misconduct within the meaning of Section 471.033(1)(g), Florida Statutes, as implemented and interpreted by Rule 21H-19.001(5), Florida Administrative Code.

    
    

19. The Petitioner has proved by clear and convincing evidence that the Respondent negligently prepared electrical plans, mechanical plans, and structural plans for the White Sands Bowling Center. This negligent preparation of plans constitutes a violation of Section 471.033(1)(g), Florida Statutes, as implemented and interpreted by Rule 21H-19.001(3), Florida Administrative Code.

    
    

20. In considering the appropriate disciplinary penalty to be imposed in this case, it should be noted that although the Amended Administrative Complaint charges the Respondent with one count of misconduct and three counts of negligence, in the final analysis this entire case involves only one set of engineering plans for a single project. Accordingly, I am of the view that the Respondent's negligence in this case should be treated as a single act of negligence rather than as three separate acts of negligence, and the recommended penalty which follows contemplates consideration of the Respondent's conduct as a single act of negligence.

    
    

21. Disciplinary guidelines, which include a range of penalties and an itemization of aggravating and mitigating circumstances to be considered, are found at Rule 21H-19.004, Florida Administrative Code. Upon consideration of those guidelines, and of all of the foregoing factual and legal matters, it is RECOMMENDED:

That the Board of professional Engineers enter a final order in this case to the following effect:

1. Finding the Respondent guilty of a violation of Section 471.033(1)(g) Florida Statutes, by reason of misconduct.

2. Finding the Respondent guilty of a violation of Section 471.033(1)(g), Florida Statutes, by reason of negligence.

   
   

3. Imposing the following disciplinary penalty on the Respondent:

(i) a written reprimand, (ii) an administrative fine of $1,000.00 for the misconduct violation and an administrative fine of $1,000.00 for the negligence violation, and (iii) a two year period of probation, including the probation requirements incorporated into Rule 21H-19.004(1), Florida Administrative Code.

DONE AND ENTERED this 17th of June, 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0543

The following are my specific rulings on all of the proposed findings of fact submitted by all parties.

Findings proposed by Petitioner

The substance of all of the findings of fact proposed by the Petitioner has been included in the findings of fact in the attached recommended order.

Findings proposed by Respondent

The second page of the Respondent's proposed recommended order contains several numbered statements, all of which have been treated as proposed findings of fact and are specifically addressed below. The remainder of the Respondent's proposed recommended order consists primarily of arguments addressed to the contentions of the Petitioner's witnesses. Those arguments have been considered during my evaluation of the Petitioner's evidence, but the arguments have not been treated as proposed findings of fact because, indeed, they are not proposed findings.

Proposal #1: Rejected as contrary to the greater weight of the evidence.

Proposals #2 and #3: Rejected as irrelevant because, although it is contended by the Respondent that the specifications would clear up many of the matters at issue here, the Respondent did not offer the specifications in evidence.

Proposal #4: Rejected as irrelevant, because there are no charges regarding the manner in which the building was actually constructed.

Proposal #5: Accepted.

Proposals #6 and #7: Rejected as contrary to the greater weight of the evidence.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. William E. Overstreet

7 Hughes Avenue

Fort Walton Beach, Florida 32548

Allen R. Smith, Jr., Executive Director Board of Professional Engineers Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-000543

Orders for Case No: 86-000543