STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT ) CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 99-1600

)

DOUGLAS W. LOWE, P.E., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida, on September 17, 1999, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Natalie A. Lowe, Esquire

Florida Engineers Management Corporation 1208 Hays Street

Tallahassee, Florida 32301

For Respondent: John E. Sullivan, Esquire

349 Pauls Drive Brandon, Florida 33511

Maxwell G. Battle, Jr., Esquire Post Office Box 1309

Kalispell, Montana 59903 STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Respondent's license as a professional engineer in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated December 29, 1998, the Florida Engineers Management Corporation, on behalf of the Florida Board of Professional Engineers, seeks to discipline the Respondent's license as a professional engineer in that state because, it alleges, he violated an order of the Board by failing to completely pay, within time limits imposed by the Board, an administrative fine assessed against him by the Board in a prior disciplinary action, in violation of Section 471.033(1)(k), Florida Statutes.

Respondent thereafter filed his answer to the administrative complaint in which he disputed the allegations contained in the complaint and, additionally, requested formal hearing. This hearing ensued.

At the hearing, Petitioner presented the testimony of Carrie Ann Flynn, assistant executive director of the Florida Engineering Management Corporation, and introduced Petitioner's Exhibits 1 through 7. Respondent testified in his own behalf and presented the testimony of Stephen James Spencer, as architect.

He also introduced Respondent's Exhibits A through H.

A Transcript of the proceedings was provided, and subsequent to the receipt thereof, both counsel submitted matters in writing which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Florida Engineers Management Corporation, for the Board of Professional Engineers, was the state agency responsible for the licensing of professional engineers and the regulation of the engineering profession in Florida. Respondent was licensed as a professional engineer in Florida under license number PE 0013355 issued on September 9, 1968, in the field of mechanical engineering.

2. By Final Order dated July 20, 1988, the Board of Professional Engineers accepted a signed stipulation entered into between Respondent and counsel for the Department of Professional Regulation in settlement of a disciplinary action against Respondent, which stipulation called for Respondent to, inter alia, pay an administrative fine of $5,000 in $1,000 increments to be paid every six months.

3. Subsequent to the entry of that Final Order, the Board furnished Respondent with five fine payment cards, one for each installment of the fine due, which reflected the amount of that installment and the date due. Each installment was for $1,000, and the installments, as reflected on the payment cards, were due of January 20, 1989, July 20, 1989, January 20, 1990, July 20, 1990, and January 20, 1991.

4. Respondent did not pay the installment due on January 20, 1989, and on March 31, 1989, the Board sent him a

   notice reminding him that his installment due on January 1 had

   not been submitted. The installment was received by the Board on May 19, 1989, and it sent Respondent a receipt on May 31, 1989, reflecting that payment in the amount of $1,000 had been received.

5. On September 25, 1990, because no further installment payments had been made by Respondent, the Board issued an Administrative Complaint alleging his failure to comply with the terms of the prior Final Order, and after informal hearing, on January 3, 1991, entered a second Final Order in which Respondent was reprimanded and ordered to make a $1,000 installment payment within three weeks from the date of the order and every six months thereafter until the full administrative fine was paid.

6. However, before entry of the second final order, on December 27, 1990, the Board received a payment of $1,000 from the Respondent. This brought the total paid to $2,000. On July 17, 1991, Respondent purchased a money order in the amount

   of $1,000 from the NCNB's Largo, Florida branch, and forwarded it to the Board. This payment, the third, was received by the Board on July 23, 1991, and brought the total amount paid to $3,000.

7. Respondent claims that at the time the third payment was made, and for a period thereafter, he was having a cash flow problem and made all his payments in cash or by money order, rather than by business or personal check. He also claims that after the July 1991 payment was made, when the remaining two installments were due, he paid them by bank money order but he

   was unable to find the customer copy of these checks or recall which bank he bought them from. Records of the Board fail to reveal either of the last two installments were paid when due.

8. Therefore, because of the apparent failure to comply fully with the terms of the Final Order as they relate to the fine, in August 1998 representatives of the Board contacted Respondent by letter to advise him that the final two installments had not been paid and of the Board's intention to take further action.

9. By letter dated September 2, 1998, Respondent's counsel forwarded to the Board a check from Respondent in the amount of

   $2,000 in full settlement of the amount of fine due. In the letter, counsel noted that the last two installments required were not paid "due to oversight on behalf of my client or if paid cannot be proven." Though they are not included in the current Administrative Complaint, counsel also referred in his letter to other requirements of the prior Board order which "might still be outstanding." However, because they were not alleged, and because no mention was made of them at hearing, they are not considered in the resolution of this matter.

10. Respondent maintained at hearing that he sincerely believed he had made all payments due but could not find any evidence thereof in his records. He asserts that aside from the August 13, 1998, letter, he did not receive any notification from the Board, from 1991 on, that he had failed to make his payments.

    However, as was mentioned previously, he also could not recall from which banks he purchased the two missing money orders.

    Considering the relative probabilities of the evidence, it is found that Respondent did not make the last two payments when due, and in addition, failed to make the first payment in a timely manner.

11. Respondent contends that he has engineered several large projects in his engineering career, such as the prototypes for Eckerd's pharmacies and Checkers restaurants, without any problems. He also claims he rarely gets any adverse feedback regarding his work or change requests from pertinent building departments. Mr. Spencer, an architect for whom Respondent frequently does work, contends Respondent is the best mechanical engineer with whom he has worked and gets the most work from him of all engineers he retains. He has found Respondent's work to be good and the prototype projects Respondent has worked on have been used repeatedly without problem. Spencer agrees that building departments rarely comment adversely on Respondent's work.

12. Respondent is 77 years old and wants to continue working. He claims he has never been charged or accused of negligence or misconduct other than in the 1988 case which resulted in the original administrative fine. However, records of the Board indicated two complaints were filed against him in 1984, one in 1985, one in 1986, and one in 1989. The records do

    not reflect the substance of the complaints or the resolution thereof.

    CONCLUSIONS OF LAW

    
    

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

14. In the Administrative Complaint filed herein, the Board has alleged that Respondent violated Section 471.033(1)(k), Florida Statutes, by failing to comply with the terms of a Final Order issued in a prior case involving him by failing to pay the fine imposed within the time limits imposed by the Order. Petitioner has the burden to establish Respondent's guilt of the offense alleged by clear and convincing evidence. Department of Banking and Finance vs. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

15. Notwithstanding Respondent's contention that he paid all the fine required of him, the evidence clearly indicates, and it was so found, that he did not pay the final two installments, totaling $2,000, until September 1998, well beyond the time limit set by the terms of the pertinent Final Order. Further, he failed to make even the first payment on time, failing to do so until reminded of his obligation in writing well after the due date.

16. The difficult issue herein is not the guilt or innocence of Respondent but the quantum of penalty to be imposed. Petitioner seeks to revoke Respondent's license.

17. Petitioner has failed to present any evidence in aggravation on the offense alleged here, nor has it indicated the nature or resolution of the complaints appearing on Respondent's disciplinary record. On the other hand, Respondent has indicated his work is well thought of, and this is confirmed by the testimony of Mr. Spencer, the architect who works with Respondent on a frequent basis. Based on this evidence, revocation of Respondent's license is not appropriate nor is another administrative fine. A reprimand, imposed in a prior action, has been shown to be ineffective, and it is clear a penalty severe enough to attract Respondent's attention and impress upon him the requirement to comply with Board orders is required.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Engineers Management Corporation enter a final order in this case suspending Respondent's license as a professional engineer in the discipline of mechanical engineering for a period of six months.

DONE AND ENTERED this 28th day of October, 1999, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1999.

COPIES FURNISHED:

Natalie A. Lowe, Esquire

Florida Engineers Management Corporation 1208 Hays Street

Tallahassee, Florida 32301

John E. Sullivan, Esquire

349 Pauls Drive Brandon, Florida 33511

Maxwell G. Battle, Jr., Esquire Post Office Box 1309

Kalispell, Montana 59903

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Dennis Barton, Executive Director Board of Professional Engineers

Florida Engineers Management Corporation 1208 Hays Street

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-001600

Orders for Case No: 99-001600