STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-4280

)

CULBREATH WHITEHEAD, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida on January 22, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Lois B. Lepp, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For the Respondent: Culbreath Whitehead, Jr., pro se

6481 Prospect Road

Sarasota, Florida 34243 STATEMENT OF THE ISSUES

The issue for consideration is whether the Respondent's registration in Florida as a professional engineer, (Number PE- 0004592) should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

On May 23, 1990, the Petitioner, Department of Professional Regulation, (Department), for the Board of Professional Engineers, (Board), filed its Third Amended Administrative Complaint against the Respondent in this case alleging that for a period from 1983 to 1987, he knowingly practiced engineering on an inactive license. By letter dated June 19, 1990, Respondent disputed the allegations and requested formal hearing, and on July 10, 1990, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

On July 30, 1990, in response to the Initial Order filed herein, the Department, with the concurrence of the Respondent, requested hearing dates in October, 1990, and on August 1, 1990, the undersigned set the case for hearing

in Sarasota on November 2, 1990, the earliest open date. Thereafter, on August 17, 1990, the Respondent filed his Answer to the Complaint. However, on September 25, 1990, in response to matters raised in a conference call to determine a schedule for response to discovery, the undersigned continued the hearing until November 9, 1990, but on November 7, 1990, in response to Petitioner's November 6, 1990 Motion For Continuance, the undersigned again continued the hearing until January 22, 1991, at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of Robert Lee Kirby, Assistant Building Director for Charlotte County, Florida and introduced Petitioner's Exhibits 1 through 8. Respondent testified in his own behalf and presented the testimony of Allen R. Smith, Jr., former Executive Director of the Board; and William F. Bishop, a registered professional engineer and president of a 50 man engineering firm in Sarasota. He also introduced Respondent's Exhibits A and B.

A transcript was provided and parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency responsible for the regulation of the engineering profession in Florida and for the registration, (licensing), of professional engineers.

   
   

2. Respondent, Culbreath Whitehead, Jr. was granted registration as a professional engineer, by examination, on August 26, 1957, and has held professional engineer registration (# PE-0004592) since that time. His registration at the time of hearing was current and due to expire on January 31, 1991. Respondent's registration previously expired on January 31, 1983, and was not renewed until August 24, 1987. During the intervening period, it was inactive due to his failure to renew it.

   
   

3. Since some time in the 1960's, the licensure status of professional engineers, and most other regulated professionals, has been maintained on a computerized system operated by the Department. All professional engineer registrations expire and are due for renewal on January 31 of alternating years. When issued, a registration is valid for two years unless revoked, suspended, voluntarily relinquished or otherwise impaired. Upon the direction of the Board, each year, prior to January 31, the Department prints out a notice of time for renewal which is mailed to each registrant whose registration is due to expire in that cycle. These notices are mailed to the registrant's address on file with the Board. The notice of the requirement and procedure for renewal is found on the back of each license.

   
   

4. The Department is obligated only to mail the notice to the registrant's last known address - not to insure it is received. Even if the registrant does not receive the notice to renew, it is his obligation to insure his registration is renewed timely. Under the Department's procedures, if a registrant does not respond to the notice to renew, a second notice is not automatically sent. Though the current law provides that a registration not renewed for four years is considered to have automatically expired, Respondent, and others who were registered before 1983, are still governed under the old law which provided for

   a ten year period of lapse before expiration. In either case, however, by statute the Department is required to notify the registrant of impending expiration one year prior to that happening.

   
   

5. Respondent claims not to have received the initial notice of renewal which should have been sent to his address at the time, Rt. 8, Box 90, Sarasota, Florida, 33580. The Department presented no evidence to show that a notice was sent to Respondent at that address or at any other, relying on a presumption of regularity. It is found that the notice was mailed to the Respondent, but it is also found that he did not, for some reason, receive it. He admits that he did not renew his registration until some time in 1987 when he was advised of his lapsed status, by a colleague, in a conversation on another matter.

   
   

6. As soon as he was advised of his status, he immediately called the Board's Tallahassee office, requested the proper forms for renewal, and, after a delay securing the required continuing education verification, submitted them to the Board. His registration was thereafter renewed without question on August 24, 1987, and has since remained current. Respondent claims that he completely overlooked the requirement for renewal and, without receipt of the notice, failed to do so. He will admit that if he did receive the notice, and he does not recall doing so, he probably set it aside without looking at it, and asserts his failure to renew was not intentional. No evidence was presented to the contrary or to give any reason for an intentional failure, and it is so found.

   
   

7. Mr. Bishop, the head of a fifty man engineering firm in Sarasota, indicated that his registration, and that of all his employees, is taken care of and paid for by the firm. He notes that while he recognizes the need for registration, and would not intentionally overlook to do it, it is quite possible that were he a sole practitioner, he could easily overlook the renewal requirement. This is not really credible. Recognizing that biannual registration is a condition precedent to practice of the profession, it is found not likely that a registrant would continuously practice for a period of years without renewal. The fact remains, however, that during the period alleged, Respondent's registration had expired for lack of renewal and was not in effect.

   
   

8. Respondent maintained listings in the Sarasota telephone book, as a consulting engineer and an electrical engineer, during the years effective June 1, 1985; July 5, 1986; and July 4, 1987. In addition, in July, 1986, at the request of an architect involved in the Redfish Cove project in Charlotte County, he prepared and set his signature and seal to preliminary drawings for the project which were filed with the Charlotte County building department as a predicate to permitting without fee. At some later date, however, when a dispute arose over his fee and continued participation in the project, he attempted to withdraw those plans. At about the same time, an official of the development first responsible for the project wrote a letter indicating that Respondent was no longer to be considered "engineer of record" for the project. Respondent claims he never was "engineer of record", does not know what that term means, and had no greater participation in the project than that described above. It is so found.

   
   

9. An investigation into Respondent's practice was initiated by the Department shortly after Respondent attempted to withdraw the plans, and two Administrative Complaints were issued against him prior to that in issue here. Both were withdrawn, however, and there is no indication Respondent is now or has been subject to other disciplinary action previously as a result of his

   professional activities. He claims, however, that the investigation of this case and the subsequent departmental handling of it were replete with errors which indicate a lack of reliability as regards the Department's action here. It is found, however, that such errors as do exist, relating primarily to the spelling of his name and the accuracy of his registration number, are ministerial scrivener's errors only and bear no relation to the evidence regarding the status of his registration or his practice as a professional engineer as alleged in the Administrative Complaint.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

11. In the Administrative Complaint, Petitioner alleges that Respondent, during the time alleged, practiced professional engineering on a revoked, suspended, or inactive license in violation of Section 471.033(1)(i), Florida Statutes. This provision, in both the 1983 and 1985 editions, lists practicing on a revoked, suspended on inactive license as grounds for disciplinary action.

    
    

12. Before action can be taken, however, the Department must establish the Respondent's guilt of such misconduct by clear and convincing evidence. Ferris

    1. Turlington, 510 So.2d 210, (Fla. 1987).

       
       

13. Here the evidence clearly establishes that during the times outlined in the Complaint, the Respondent's license had become inactive because he failed to renew it on time. It was neither suspended nor revoked for misconduct. By the same token, during the period in question he held himself out to the public as a professional engineer and is shown to have actually utilized his seal as a professional engineer on engineering documents on at least one occasion during that time. He is, therefore, subject to disciplinary action for that infraction.

    
    

14. Respondent claims he did not receive notice from the Department that his registration needed renewal. However, as was found previously, the Department is required only to mail the notice to the registrant's last known address. It is the responsibility of the registrant, for whom licensure is a condition precedent to lawful practice, to insure that his license is current at all times he is so engaged. He cannot successfully claim that he should not be disciplined when by his own admission, he took no action to inquire into the status of his registration for over four years. He was initially registered in 1957 and from that time until 1983, a period of sixteen years, he must have renewed his registration at least eight times previously. The responsibility for renewal was his, not the Department's, and his failure to receive the notice, if that is what happened, is not a bona fide excuse for failing to carry out his obligation.

    
    

15. It must be noted, however, that his license's inactive status was not the result of disciplinary action, but of a oversight on his part. As such, and in the absence of any evidence of previous disciplinary action, neither revocation nor suspension is appropriate. Neither is the imposition of an administrative fine. However, action must be taken sufficient to insure that Respondent, in the future, continues to recognize his responsibility to see to the currency of his registration status.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be issued in this case issuing a reprimand to the Respondent, Culbreath Whitehead, Jr., and placing him on probation for one year and under such conditions as the Board may specify.

RECOMMENDED this 28th day of February, 1991, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4280

The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of fact submitted by the parties to this case.

For the Petitioner:

1. & 2. Accepted and Incorporated herein.

1. & 4. Accepted and Incorporated herein.

   1. Accepted and Incorporated herein.

   2. & 7. Accepted and Incorporated herein.

      1. Accepted and Incorporated herein except for the last sentence which was not proven.

      2. Not a Finding of Fact.

      3. - 12. Accepted and Incorporated herein.

         13. Accepted and Incorporated herein.

         
         

         For the Respondent:

         
         

         1. & 2. Accepted and Incorporated herein.

            1. Accepted and Incorporated herein.

            2. Accepted.

            3. Rejected.

            4. Accepted.

            5. Accepted and Incorporated herein.

            6. Accepted.

            7. There is no Proposed Finding Of Fact # 9.

            8. - 13. Accepted and Incorporated herein.

               1. Accepted.

               2. & 16. Accepted and Incorporated herein.

                  1. Not a Finding of Fact but a restatement of testimony which is accepted.

                  2. Not a Finding of Fact.

                  3. Not a Finding of Fact but a restatement of testimony.

                  4. Not a Finding of Fact but an argument on the admiss- ibility of evidence.

                  5. Not a Finding of Fact but a restatement of testimony which is accepted.

                  6. Not a Finding of Fact.

                  7. Not a Finding of Fact but an argument on the law.

                  8. Accepted.

COPIES FURNISHED:

Lois B. Lepp, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Culbreath Whitehead, Jr. 6481 Prospect Rd.

Sarasota, Florida 34243

Jack L. McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Carrie Flynn Executive Director

Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to 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: 90-004280

Orders for Case No: 90-004280