STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-3621

)

BARRETT L. TAFT, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this matter was held in Eustis, Florida on December 1, 1987, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Barrett L. Taft

2940 Cove Trail

Maitland, Florida 32571 BACKGROUND AND PROCEDURAL MATTERS

The original administrative complaint filed in this proceeding on June 10, 1987, alleged that Respondent violated Sections 471.033(1)(a), (g) and (j), F.S., by signing and sealing plans that had not been prepared by him or under his supervision; and by sealing those plans which should have been sealed by an architect, and which depicted work beyond his profession or speciality.

Respondent (Taft) timely requested a formal hearing.

Approximately ten days prior to the hearing, Petitioner (DPR) filed its motion to amend the Administrative Complaint to provide a minor correction of an individual's name, and to provide greater specificity of the allegations. The amended complaint did not provide additional allegations or material changes.

The motion to amend was granted without objection on the record at the commencement of the final hearing on December 1st.

In support of its amended complaint, DPR presented the testimony of nine witnesses and submitted five exhibits. Petitioner's exhibits #1, 4 and 5 were admitted over the objection of Respondent. Mr. Taft claimed that evidence of past disciplinary action was irrelevant to the present case. Exhibits #2 and 3 were received without objection.

Mr. Taft presented his case through cross-examination and through his own testimony. His one exhibit, a list of projects, was received in evidence without objection.

After hearing and the filing of a transcript, DPR filed a proposed recommended order. The findings of fact contained therein have been essentially incorporated in this recommended order.

ISSUES

It is necessary to resolve the following issues in this proceeding:

1. Whether Mr. Taft violated Section 471.025(3), F.S. and thereby violated Section 471.033(1)(a), F.S., by signing and sealing plans depicting work that he was not licensed nor qualified to perform;

2. Whether he violated Section 471.033(1)(j), F.S., by signing and sealing plans that had not been prepared by him or

   under his supervision, direction or control; and

3. Whether he violated Section 471.033(1)(g), F.S., by misconduct in the practice of engineering for the same acts alleged in a) and b), above.

FINDINGS OF FACT

1. Barrett L. Taft, P. E. has been licensed in the State of Florida as a professional engineer since 1968, holding license number PE 0013208.

   
   

2. Mr. Taft graduated from the Massachusetts Institute of Technology in 1940 with a degree in metallurgical engineering. For the first 27 years he practiced mostly metallurgical engineering, with some, but admittedly very little building experience.

After moving to Florida he took the engineers' exam in metallurgical engineering and was licensed. Since being licensed in Florida, he has worked as a sole practitioner in the Maitland-Central Florida area. His primary business activity since 1968 has been the operation of a metal die casting business with a die casting machine that he invented and patented.

1. The contractor who built Taft's plant in Casselberry, a pre-engineered metal building, asked Taft to help him work on foundations for metal buildings. In this way Taft started doing building projects, primarily metal buildings.

   
   

2. Harvey Spears was one of the contractors Taft worked with. Spears is a licensed contractor who owns Spears General Contractors, Inc. in Eustis, Florida.

   
   

   J. C. Woliver is an employee of Spears, Inc. He is a draftsman and prepares estimates for the company. Neither he, nor Harvey Spears, nor the company are licensed in architecture or engineering.

3. Sometime in 1985 and 1986, J. C. Woliver prepared drawings for two buildings to be constructed in Eustis by Spears. One was a 2,567 square foot insurance company building, the Talmadge Building; the other was a small strip shopping plaza, Bay Street Plaza.

   
   

   After the drawings were completed and approved by the owners, Harvey Spears took them to Taft's office for his review. Taft reviewed and sealed the drawings. Building permits were obtained; both projects were constructed and they are now occupied by the owners' businesses.

   
   

4. Barrett Taft never met with the owners prior to sealing the drawings, nor did he ever meet or talk with J. C. Woliver during preparation of the drawings. Neither Woliver nor Spears were employed by Barrett Taft and he had no supervisory relationship with these individuals.

   
   

5. Taft did not do engineering calculations for these two projects, as in his view they were very simple. He reviewed the drawings prepared by Woliver and checked them against the standard building code. No changes were made prior to Taft's application of his seal and return of the drawings to Spears.

   
   

6. The plans for the Bay Street Plaza were signed, dated and sealed by Mr. Taft in his capacity as a professional engineer on August 5, 1985. The Talmadge Building plans were signed, dated and sealed by Mr. Taft in his capacity as a professional engineer on May 6, 1986.

   
   

7. The drawings sealed by Taft for both projects are very sketchy and lack essential detail. No engineering calculations are included, and it is impossible to review the drawings to determine compliance with fire and life- safety codes.

   
   

   Because these buildings are used and inhabited by the public, they should have been designed by an architect. Architects, not engineers, are trained and tested in the requirements of the various building codes, including the fire and life-safety codes. Barrett Taft is not a licensed architect.

   
   

8. Taft argues that he was providing a service to the public and the customers are satisfied. His arrangement with Harvey Spears with regard to sealing Woliver's drawings was that he would not handle anything complicated and the contractor would follow the building code. He felt that the buildings were little more than house-like structures which would not require an engineer's calculations or a seal.

   
   

9. Barrett Taft was disciplined previously by the Board of Professional Engineers. In an Order dated May 25, 1984, and amended July 31, 1984, the Board imposed a fine of $1,000.00 and one year probation. The order was entered after an informal hearing requested by Mr. Taft. The Board found in that case (DPR #0034220) that Mr. Taft was guilty of negligence; that he lacked training, experience and education to perform the services provided; and that he affixed his seal and signature to drawings that were not prepared by him or under his responsible supervision or direction.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections 120.57(1), Florida Statutes and 455.225(4), Florida Statutes.

11. Barrett Taft is charged with violating the following provisions of Chapter 471, Florida Statutes, relating to the regulation of the practice of engineering in Florida:

    
    

    471.025 Seals.--

    * * *

    (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 or specialty therein.

    
    

    471.033 Disciplinary proceedings.--

    1. The following acts constitute

       grounds for which the disciplinary actions in subsection (3) may be taken:

       1. 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;

    * * *

    (j) Affixing or permitting to be

    affixed his seal or his name to any plans, designs, drawings, or specifications which were not prepared by him or under his responsible supervision, direction, or control;

    * * *

    
    

12. In Verich v. Florida State Board of Architecture, 239 So.2nd 29, the Florida Fourth District Court of Appeal in 1970, found that the legislature in regulating architects and engineers, failed to limit or restrict the type of buildings which professional engineers were authorized to design.

    
    

13. Sometime later, the legislature addressed this problem by amending the definition of "professional engineering" to delete the reference to planning and design for construction of buildings. See Section 2, Chapter 79-243, Laws of Florida.

    
    

14. That same year, 1979, the legislature re-codified the Architecture Practice Act in Chapter 481, F.S. and provided this definition of architecture:

    
    

    ...rendering or offering to render services in connection with the design and construc- tion of a structure or group of structures which have as their principal purpose human habitation or use, and the utilization of space within and surrounding such structures. These services include planning, providing

    preliminary study designs, drawings and specifications, architectural supervision, job site inspection and administration of construction contracts.

    Section 481.203(6), F.S.

    
    

    While the overlap between the two professions has thus been largely eliminated, Section 471.003(3), F.S. still provides,

    
    

    ...no registered engineer whose principal practice is civil or structural engineering, or employee or subordinate under the respon- sible supervision or control of the engineer, is precluded from performing architectural services which are purely incidental to his engineering practice

    
    

15. The Bay Street Plaza and the Talmadge Building are both structures which "have as their principal purpose human habitation or use" and the definition at Section 481.203(6), F.S., above, is by no means limited to buildings in which humans live, as argued by Taft.

    
    

    Further, since Mr. Taft's principal practice is neither civil nor structural engineering, he is not covered by the limited exception found in Section 471.003(3), F.S.

    
    

16. The Department proved by clear and convincing evidence that Barrett L. Taft was not licensed or otherwise qualified to sign and seal the drawings for the Bay Street Plaza and the Talmadge Building. The Department also proved that the drawings he sealed were not prepared by him or under his responsible supervision, direction, or control.

    
    

17. In recommending a penalty, reference has been made to the disciplinary guidelines found in Rule 21H-19.004, F.A.C. Mr. Taft's prior disciplinary record, admitted into evidence for this limited purpose only, provides the aggravating factor discussed in the guidelines. On the other hand, the penalty is mitigated by the lack of evidence of damages. Mr. Taft has presented no basis to deviate from the guidelines; therefore, the penalty suggested by the Department is incorporated in this order.

    
    

    RECOMMENDATION

    
    

    Based on the foregoing, it is, hereby RECOMMENDED:

    That a final order be entered finding Barrett L. Taft, P.E., guilty of violations of subsections 471.025(3), 471.033(1)(a), (g) and (j), and imposing the following discipline.

    
    

    1. Reprimand.

(b) $1,000.00 fine.

1. One year suspension.

2. Two years probation, following suspension, under conditions to be determined by the Board, relating to limiting Mr. Taft's practice to a field in which he is qualified to work and limiting the use of his seal to his own work.

DONE and RECOMMENDED this 4th day of February, 1988, in Tallahassee, Florida.

MARY CLARK

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 day of February, 1988.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Barrett L. Taft 2940 Cove Trail

Maitland, Florida 32571

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, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF PROFESSIONAL ENGINEERS

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PROFESSIONAL ENGINEERS,

Petitioner,

vs. CASE NO. 87-3621

BARRETT L. TAFT,

Respondent.

/

FINAL ORDER

THIS CAUSE came on to be heard before the Board of Professional Engineers at a regularly scheduled meeting held in Miami, Florida on March 17, 1988, pursuant to a Recommended Order entered by Hearing Officer, Mary Clark, on February 4, 1988. The Board after a review of the entire record hereby accepts the Findings of Fact and Conclusions of Law and Penalty recommended by the Hearing Officer with the exception that the limitation on Respondent's practice recommended by the Hearing Officer shall be a continuing limitation unless and until Respondent takes and passes the Principles and Practice portion of the engineering examination relating to a field of engineering other than that which forms the basis of his present license, i.e., metallurgical engineering. Thus, Respondent shall be limited in his practice to the field of metallurgical engineering so long as he holds a license to practice professional engineering in this state unless and until he demonstrates competence in another area by taking and passing the examination in that area of expertise.

During the one year suspension recommended by the Hearing Officer and imposed by the Board, Respondent shall complete the Engineering Law and Rules Study Guide and complete a course in engineering professionalism and ethics prior to the termination of his suspension. Failure to complete said conditions shall result in the suspension continuing until the completion of said conditions.

As a condition of the probationary period of two years, which is recommended by the Hearing Officer and approved by the Board, and the Board and the Department of Professional Regulation through an engineering consultant approved by the Board and employed by the Department shall, at Respondent's expense, review his practice once a year during each year of probation in order to ascertain that Respondent has complied with the terms of this order.

Finally, Respondent is cautioned to comport himself in accordance with the terms of this order and with all laws and rules governing the practice of engineering in the State of Florida. Insofar as Respondent has been disciplined on two

occasions, including this proceeding, Respondent is placed on notice that any violation in the future will, in the opinion of the present Board, result in the revocation of his license to practice professional engineering in this state.

DONE and ORDERED this 5th day of May, 1988.

ALLEN REX SMITH, JR., EXECUTIVE DIRECTOR

COPIES FURNISHED:

Barrett L. Taft

Charles F. Tunnicliff, Esquire Mary Clark, Hearing Officer

Docket for Case No: 87-003621

Orders for Case No: 87-003621