STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT CORPORATION,

Petitioner,

vs.

MARK CRAIG FETHERMAN, P.E.,

Respondent.

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) Case No. 00-2614

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Jeff B. Clark, held a formal hearing in this case on December 7 and 8, 2000, in Orlando, Florida.

APPEARANCES

For Petitioner: Douglas D. Sunshine, Esquire

Florida Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301

For Respondent: Minerva Higgins, Esquire

1770 Fowler Drive

Merritt Island, Florida 32952 STATEMENT OF THE ISSUE

Whether the license of Respondent, Mark Craig Fetherman, P.E., should be disciplined for negligence in the practice of engineering, in violation of Section 471.033(1)(g), Florida

Statutes, as more specifically alleged in the Administrative Complaint filed in this case on May 27, 2000.

PRELIMINARY STATEMENT

On May 27, 2000, Petitioner, Florida Engineers Management Corporation, filed an Administrative Complaint alleging in five counts that Respondent, Mark Craig Fetherman, P.E., violated Section 471.033(1)(g), Florida Statutes, by negligently practicing engineering. By letter dated June 20, 2000, Respondent disputed the allegations in the Administrative Complaint and requested a formal hearing. The matter was referred to the Division of Administrative Hearings on June 27, 2000. An Initial Order was forwarded to the parties on June 30, 2000.

On July 28, 2000, a Notice of Hearing was entered setting the final hearing on November 7, 2000, in Orlando, Florida. On Respondent's Motion, the case was rescheduled for final hearing on December 7 and 8, 2000.

At the final hearing, Petitioner presented two witnesses, one of whom, Wilbur T. Yaxley, P.E., was accepted as an expert witness. Petitioner offered five exhibits, all of which were admitted into evidence. Respondent presented three witnesses, including himself, and offered five exhibits. All were admitted into evidence.

At the close of the evidence, the parties were advised of their right to submit proposed recommended orders, and any memorandum of law they wished to present. The parties requested and received 25 days from the filing of the transcript to submit proposed recommended orders. The Transcript of the proceedings was filed on January 3, 2001.

Respondent submitted Proposed Findings of Fact and Conclusions of Law on January 22, 2000; Petitioner submitted Petitioner's Proposed Recommended Order on January 26, 2000. Both were thoughtfully considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made.

1. Petitioner, Florida Engineers Management Corporation, provides prosecutorial services to the Board of Professional Engineers as authorized by Section 471.038(4), Florida Statutes. The Board of Professional Engineers is charged with regulating the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes.

2. Respondent, Mark Craig Fetherman, P.E., is a licensed professional engineer holding License No. PE40116. Prior to the instant case, he has not been subject to disciplinary action.

3. Respondent has a bachelor's degree in physics and mechanical engineering and a master's degree in management information systems.

4. Respondent has developed software to calculate windloads for wood and metal trusses. He operates his own company and offers engineering services to others which include performing load calculations for residential homes.

5. Petitioner's expert witness, Wilbur T. Yaxley, P.E., is a civil engineer primarily concerned with building and structure-type work. He has approximately 24 years' engineering experience and has done consulting and forensic work since 1993. This is his first case involving light-gauge metal roof trusses. He has never designed a roof truss. He has never been involved in the manufacture of light-gauge metal trusses.

6. Petitioner's expert witness testified that light-gauge steel trusses are a fairly new process. Light-gauge steel (16, 18, 20 gauge) has become a major structural building material in the last five years. Unlike the wood truss industry, there isn't much published information on light-gauge metal trusses, and what information that is available is not approved or accepted by the Standards Building Code. The Standards Building Code refers to American Iron and Steel Institute (AISI) documentation: "The design of structural members cold-formed

   from carbon or low alloy steel shall conform to AISI Specifications "

7. While Mr. Yaxley is familiar with "finite element analysis" (using computer software to analyze a system or component to see how it reacts under certain loading), he personally does not do finite element analysis. He has not analyzed the truss system in this case as a whole.

8. Respondent had contracted with Marjorie and Art Schiavone to design a residence which included a connected airplane hanger. In addition, Respondent was to "procure steel roof trusses for the residence," specifically, the scope of work included materials, truss manufacture and delivery, and modifications needed due for foundation and/or wall configurations.

9. Art Schiavone (hereinafter "Schiavone") accepted Respondent's plans without objection.

10. Schiavone, who had little building experience, as property owner acted as his own general contractor.

11. Petitioner's expert testified that "Schiavone really thought Mr. Fetherman was supervising his construction." Respondent testified that he was not supervising construction and Petitioner's expert agreed that was not Respondent's role.

12. There was a great deal of personal conflict between Schiavone and Respondent. Schiavone prepared and dated his

    Complaint to the Board of Professional Engineers on November 16, 1999. He then showed the Complaint to Respondent's partner "to get satisfaction out of Mr. Fetherman."

13. Respondent left the job in mid-December. The Complaint was received by the Board of Professional Engineers on December 28, 1999. Schiavone told Respondent's partner that he would withdraw the Complaint if Respondent would continue as engineer on the job.

14. There is conflict in the testimony of Schiavone and Respondent. I find the testimony of Respondent to be more credible.

15. Some of the roof (and hanger) trusses were damaged when they arrived at the job site. The repair process involved removing the damaged member and replacing it with a new piece of metal. Holes had to be redrilled and screws were replaced.

16. Respondent was not present when some of the trusses were repaired. Similarly, Respondent was not present when some of the roof trusses were modified.

17. Schiavone modified the trusses without the benefit of shop drawings after Respondent left the job.

18. Lisa Connelly, Plans Examiner for the Marion County Building Department, testified that Respondent came to her office and told her that Schiavone had altered the trusses without Respondent's supervision and that Respondent was going

    to remove himself from the job due to deviations in engineering, in that the trusses were not what Respondent had engineered.

19. Respondent noted 13 construction items which had not been done correctly, at least one-half of which would create problems with the trusses being installed properly.

20. When Schiavone poured the wall lintel, he failed to install connector straps as per plans. Respondent had provided Schiavone detailed drawings showing the location of two connector straps per truss heel. In most instances, as built, there was only one connector strap per truss heel and it was not properly located to fit into the truss heel gusset plate.

21. Petitioner's expert found from 10 to 18 screws in most truss heel gusset plates. Respondent had photograph enlargements (taken for another purpose) which showed 18 screws in each truss heel gusset plate in the particular photographs. These photographs were taken to show transportation damage and would have showed the condition of the trusses before any repair or modifications.

22. The typical wall cross-section drawing shows two connector straps with seven screws per strap.

23. Had there been two connector straps per location, had the connector straps been properly located, and had they been installed into the truss heel connection gusset plate as per

    plans, there would have been 32 screws per truss heel, which would have exceeded design criteria.

24. It was not Respondent's responsibility to ensure that Schiavone built the structure according to the plans.

25. Respondent's General Summary Sheet specifies 25

    
    

    self-drilling screws at the heel connection of the hanger truss. Petitioner's expert opines that 54 No. 10 self-drilling screws are needed.

26. Respondent testified that his software calculates the whole truss system, not just the heel connection standing alone, and that instead of shear, the heel connection would be subjected to rotation stress.

27. Respondent calculated varying windloads, safety factors, and the number of screws required for varying windloads and determined that 25 screws would be needed for 120 mph windloads with a 3.5 safety factor; 54 screws with the same general safety factor would allow a 300-320 mph windload.

28. Petitioner's expert opines that both the hanger truss heel connection and the scissors truss would require a heavier gusset plate. He did not, however, calculate forces and loads on the entire truss system. He simply ran calculations on a normal pin-connection truss design.

29. Respondent determined, using his software, that a 20-gauge piece of steel is satisfactory for the gusset plate.

30. Petitioner's expert opines that in the foundation plan, the thickened portion of foundation slab would be for an interior load-bearing wall.

31. Petitioner's expert acknowledges that he is not sure what the loads would be on the interior load-bearing wall. He does know that the bearing point on some of the trusses and the interior load-bearing wall would not match up by 42 inches. But, he testified that he did not know whether this would make a difference or not.

32. The interior load-bearing wall was constructed after the trusses were installed and after Respondent left the job.

33. There is a jog shown in the floor plan for the interior load-bearing wall which is inconsistent with the foundation plan.

34. Respondent testified that the plans were as he intended. He designed the interior load-bearing wall footer to run straight because its easier for the individuals laying the foundation to lay it correctly.

35. More importantly, the trusses are two bearing points trusses, and do not need the interior load-bearing wall. The interior load-bearing wall simply adds to the windload capacity.

36. Respondent acknowledges that on 5 interior trusses, the bearing points do not match up with the interior load- bearing wall, but this is not critical because the trusses are

    two bearing point trusses and these 5 trusses are interior

    
    

    trusses.

    
    

    CONCLUSIONS OF LAW

    
    

37. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

38. Florida Engineers Management Corporation provides administrative, investigative, and prosecutorial services for the Board of Professional Engineers as authorized by Section 471.038(3), Florida Statutes. The Board of Professional Engineers is authorized to discipline licensees for negligence in the practice of engineering by Section 471.033(1)(g), Florida Statutes.

39. As used herein, "negligence" is defined as "the failure by a professional engineer to utilize due care in performing an engineering capacity or failing to have due regard for acceptable standards of engineering procedures." Rule

    61G15-19.001(4), Florida Administrative Code.

    
    

40. License revocations and discipline procedures are penal in nature. Petitioner must demonstrate the truthfulness of the allegations in the Administrative Complaint dated May 26, 2000, by "clear and convincing evidence." Department of Banking and Finance vs. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987).

41. The "clear and convincing" standard requires:

    
    

    That the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; and testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz vs. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

    
    

42. The burden of proof is on the party asserting the affirmative of an issue, in this instance Petitioner, Florida Engineers Management Corporation. Department of Transportation vs. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981).

43. Where Petitioner charges negligent violations of general standards of professional conduct, as in this case, Petitioner must present expert testimony that proves the required professional conduct, as well as the deviation therefrom. Purvis vs. Department of Professional Regulation,

    461 So. 2d 134 (Fla. 1st DCA 1984).

    
    

44. There is no "clear and convincing" evidence of any precise act or omission of Respondent, Mark Craig Fetherman, P.E., that constituted a failure on his part to utilize due care in performing an engineering capacity or failing to have due regard for acceptable standards of engineering procedures.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

Recommended that Petitioner enter a final order finding that Respondent is not guilty of "negligence" as alleged in the Administrative Complaint dated May 22, 2000.

DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida.

JEFF B. CLARK

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) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2001.

COPIES FURNISHED:

Minerva Higgins, Esquire 1770 Fowler Drive

Merritt Island, Florida 32952

Douglas Sunshine, Esquire

Florida Engineers Management Corporation 1208 Hays Street

Tallahassee, Florida 32301

Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and

Professional Regulation 1208 Hays Street

Tallahassee, Florida 32301

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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: 00-002614

Orders for Case No: 00-002614