STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA ENGINEERS MANAGEMENT CORPORATION,
Petitioner,
vs.
WILLIAM T. LINDEMANN, P.E.,
Respondent.
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) Case No. 02-0352PL
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RECOMMENDED ORDER
A formal hearing was conducted in this case on April 11, 2002, in Clermont, Florida, and on April 29, 2002, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Douglas Sunshine, Esquire
Florida Engineers Management Corporation
2507 Callaway Road, Suite 200
Tallahassee, Florida 32303
For Respondent: Michael C. Norvell, Esquire
Michael C. Norvell, P.A. Post Office Box 491615 Leesburg, Florida 34749-1615
STATEMENT OF THE ISSUES
The issues are as follows: (a) whether Respondent William T. Lindemann, P.E., is guilty of violating Section 471.033(1)(g), Florida Statutes, by engaging in the negligent
practice of engineering; and (b) if so, what discipline should be imposed.
PRELIMINARY STATEMENT
On December 6, 2001, Petitioner Florida Engineers Management Corporation (Petitioner or FEMC) filed an Administrative Complaint against Respondent William T. Lindemann, P.E. (Respondent). The complaint alleged that Respondent had engaged in the negligent practice of engineering in violation of Section 471.033(1)(g), Florida Statutes.
Specifically, the complaint alleges that Respondent signed and sealed post splice detail drawings and calculations dated November 23, 1998, which contained deficiencies. The deficiencies included but were not limited to a failure to show compression, moment, and shear capacity or limitation of the splice design.
On December 28, 2001, Respondent filed an Answer to Complaint and a Motion to Dismiss Complaint. The motion asserted the doctrine of res judicata and stated that the allegations and facts in the instant case are the same as the allegations and facts in FEMC 99-00092.
On December 31, 2001, Respondent filed an Election of Rights form. In the form, Respondent requested a formal hearing to contest the charges against him.
Petitioner filed a Response to Respondent's Motion to Dismiss Complaint on January 28, 2002.
Petitioner referred the case to the Division of Administrative Hearings (DOAH) on January 28, 2002. DOAH assigned DOAH Case No. 02-0352PL to the case against Respondent.
On February 4, 2002, the parties filed a Joint Response to Initial Order. In this response, the parties advised that a related case, Florida Engineers Management Corporation v.
Rick E. McCoy, P.E., DOAH Case No. 01-4756PL, was pending before DOAH. The parties requested that the instant case be consolidated with the related case. Rick E. McCoy, P.E., is hereinafter referred to as Mr. McCoy.
On February 4, 2002, Respondent filed a Reply to Petitioner's Response on Motion to Dismiss.
On February 8, 2002, Administrative Law Judge Charles C. Adams issued an Order. Among other things, the Order denied Respondent's motion to dismiss the Administrative Complaint pursuant to the doctrine of res judicata.
Judge Adams issued an Order consolidating DOAH Case
Nos. 01-4756PL and 02-0352PL on February 18, 2002. That same day, Judge Adams issued an Order Granting Continuance and
Re-Scheduling Hearing in the consolidated cases on April 11-12, 2002.
On April 1, 2002, Respondent filed an Amended Answer to Complaint Affirmative Defense. This pleading raised judicial immunity as an affirmative defense.
On April 1, 2002, the parties filed a Joint Pre-hearing Stipulation containing admitted facts. The admitted facts as they relate to the issues in this proceeding are accepted and are separately detailed in the Findings of Fact of this Recommended Order.
On April 8, 2002, DOAH reassigned these consolidated cases to Administrative Law Judge Suzanne F. Hood.
During the hearing on April 11, 2002, Petitioner presented the testimony of two witnesses and offered five exhibits that were accepted into evidence. Mr. McCoy testified on his own behalf, presented the testimony of three additional witnesses, and offered 18 exhibits that were accepted into evidence.
Respondent testified on his own behalf, presented the testimony of one additional witness, and offered two exhibits that were accepted into evidence.
Before the hearing concluded on April 11, 2002, the parties agreed to continue the hearing in Tallahassee, Florida, on a mutually convenient date. Subsequently, a Notice of Hearing dated April 15, 2002, scheduled the continued hearing for
April 29, 2002.
During the hearing on April 29, 2002, Respondent made an appearance by telephone. Respondent offered one exhibit that was accepted into evidence. McCoy presented the testimony of two witnesses and offered five exhibits that were accepted into evidence. Both files in DOAH Case Nos. 01-4756PL and 02-0352PL contain copies of all hearing exhibits.
A two-volume Transcript of the April 11, 2002, proceeding was filed on April 29, 2002. A one-volume Transcript of the April 29, 2002, proceeding was filed on May 14, 2002. Because DOAH Case Nos. 01-4756PL and 02-0352PL share the hearing transcript, it is filed with DOAH Case No. 01-4756PL.
On May 1, 2002, Mr. McCoy's counsel filed a Notice of Filing Respondent's Counsel's Letter of May 1, 2002. The notice clarified that the 1999 case against Mr. McCoy involved DOAH Case No. 99-5136 and FEMC Case No. 99-00059. The notice also stated that the 1999 proceeding against Respondent involved FEMC Case No. 99-00092.
Pursuant to the agreement of the parties, proposed findings of fact and conclusions of law were due to be filed on or before June 13, 2002. Petitioner filed its Proposed Recommended Order on that date.
On June 17, 2002, Respondent filed a Motion for Extension of Time to File Proposed Order. Petitioner filed a response in opposition to the motion on June 24, 2002. Respondent filed his
Proposed Recommended Order on June 25, 2002. By order dated June 28, 2002, the undersigned granted Respondent's motion and provided Petitioner with an opportunity to file a supplemental proposed order on or before July 5, 2002. Petitioner has not availed itself of the opportunity to file a supplemental proposed order.
For purposes of issuance of this Recommended Order, DOAH Case Nos. 01-4756PL and 02-0352PL are hereby deconsolidated.
FINDINGS OF FACT
Stipulated Facts
Petitioner is charged with regulating the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes.
Respondent is, and has been at all times material hereto, a licensed engineer in the State of Florida, having been issued License No. PE 33577.
On November 23, 1998, Respondent signed and sealed a dock post detail drawing and calculations directed to Norquist Construction Company, Inc. (Norquist Construction).
The drawings and calculations signed and sealed by Respondent on November 23, 1998, do not show compression, moment and shear capacity, or limitation of the dock post.
The Florida Legislature has not amended Section 471.033(1)(g), Florida Statues, since October 22, 1999.
The Board of Professional Engineers has not amended Rule 61G15-30.005, Florida Administrative Code, since October 22, 1999.
The Florida Legislature has not amended the investigative and prosecutorial powers granted to Petitioner in Section 471.038(3), Florida Statutes, since October 22, 1999.
Joseph Dougherty furnished information to Petitioner, which was relied upon or referred to in FEMC Case No. 99-00092.
Joseph Dougherty furnished information to Petitioner, which was relied upon or referred to in FEMC Case No. 01-0023.
Respondent's drawing of November 23, 1998, was never used on the complainant Dougherty's dock.
Petitioner's attorney, Douglas Sunshine, Esquire, stated to the Probable Cause Panel that the panel need only look at the four corners of the November 23, 1998, drawing to determine it deficient and negligent.
FEMC Case No. 99-00092 against Respondent concerns the same splice joint at issue in the instant case.
FEMC Case No. 99-00092 against Respondent was dismissed.
Facts Determined at Hearing
Respondent has been a professional engineer for over
50 years. Structural engineering always has been the focus of Respondent's professional practice.
Mr. McCoy is a professional engineer whose engineering experience primarily involves land development with a focus on drainage, water, and sewers. Prior to signing and sealing the engineering documents at issue here, Mr. McCoy had never designed a structure as a licensed professional engineer.
Ken Norquist owns Norquist Construction Company, Inc.
Since its creation in 1972, the company has constructed approximately 200 boat docks in Lake County, Florida.
In 1995, the Lake County Building Department (Building Department) started requiring contractors to present engineering plans in order to receive building permits for the construction of boat docks. The Building Department did not require the plans to identify a specific project. Instead, the Building Department required a contractor to identify the project when he pulled the building permit. The Building Department held the contractor and not the engineer responsible for project administration on such specific projects.
In 1995, the Building Department requested
Mr. Norquist to file some standard dock drawings. The Building Department made this request because Mr. Norquist was building the same kind of dock over and over again.
In 1995, Mr. Norquist requested Mr. McCoy to review drawings that the construction company allegedly had utilized to build docks in Lake County, Florida, for several years. In
fact, the construction company had not used any engineering drawings in the construction of the boat docks because, according to Mr. Norquist, they were "cookie cutter" stuff.
By letter dated May 17, 1995, Mr. McCoy submitted a signed and sealed Standard Dock Design to the Building Department. The letter stated that the design had been developed in conjunction with Norquist Construction. The letter stated that Mr. Norquist had successfully constructed the design numerous times in the past. The letter requested the Building Department to place the design on file in an effort to simplify future permit requests for Norquist Construction.
Mr. McCoy reviewed but did not create the drawings for the Standard Dock Design (master plan) that he signed, sealed, and submitted on May 17, 1995. There is no evidence that
Mr. McCoy was ever retained to become the engineer of record for the construction of any specific boat dock that the Building Department permitted and that Mr. Norquist constructed using the master plans. Mr. McCoy never visited the site of any such construction; no one ever requested him to do so.
Mr. McCoy considered the following in reviewing the master plan: (a) boat docks constructed consistent with the drawings would withstand a 100-mile per hour wind load and gravity loads of 100-pounds per square inch; (b) six-by-six inch posts would result in a safe structure; (c) the boat docks, if
constructed pursuant to the master plan, would be safe because the displayed dock enclosure measured 10 by 24 feet and the largest boat that could fit in the enclosure was approximately 2,500 to 4,000 pounds; (d) the boat docks would withstand gravity loads of an 8,000-pound boat; and (e) an 8,000-pound boat stored in the dock would cause only a quarter-inch of deflection in the structure. Mr. McCoy reached these conclusions but did not show them on any of his plans.
Mr. McCoy made several changes to Mr. Norquist's drawings. Mr. McCoy changed the drawing to show the posts being inserted into the lake bottom five feet, not three feet as originally shown and to show braces installed on the posts.
Mr. McCoy's master plan did not show that the posts were spliced. The record is unclear as to when Mr. McCoy first became aware that the posts were spliced.
Mr. McCoy did not provide a detail for the assembly of the boatlift on the drawings because it is a pre-engineered structure. Mr. McCoy knew that the owner of the dock would choose the boatlift on a specific project. Mr. Norquist did not request Mr. McCoy to design the details for optional boatlifts that might or might not be installed on a specific boat dock.
In March of 1997, the Building Department issued a permit to Norquist Construction to build a boat dock for John Winner in Lake County, Florida. The master plan was included in
the permit documents. There is no evidence that Mr. McCoy was aware of this particular permit in 1997. The construction of the Winner boat dock was completed in April 1997.
In June 1997, the Building Department issued another permit to Norquist Construction to build a boat dock for Patricia Harvey, who subsequently married Joe Dougherty.
Mr. McCoy was not aware of this permit when it was issued in 1997.
The Winner and Dougherty boat docks subsequently were under water for approximately 96 days until the water in the lake receded. The owners of the docks became dissatisfied with the condition of their docks.
On August 25, 1997, Mr. McCoy submitted a revision to the Standard Dock Design for Norquist Construction to the Building Department.
In 1998, Mr. Norquist requested Mr. McCoy to analyze the way in which Mr. Norquist was using post splices in the construction of boat docks. Post splices were not shown on the master plan even though Mr. Norquist had been using them in the construction of boat docks for 15 years. In fact, every dock that Mr. Norquist constructed utilized such dock post splices. The post splices were necessary to allow for the elevation of the docks in the event that the lake had unusually high water.
Mr. McCoy performed an analysis and concluded that Mr. Norquist's post splices were safe. However, in an abundance of caution, Mr. McCoy requested Respondent to review the post splice connection for Mr. Norquist. Mr. McCoy made it clear to Respondent that he would be performing the work for Mr. Norquist and not for Mr. McCoy.
Before beginning his analysis, Respondent confirmed with Mr. Norquist that the dock post splice would be used to support an open pier, without a shelter, to which a 3,000 pound boat could tie up. Respondent then reviewed the dock post splice construction as requested. He tested the tension loads that could be sustained by the boat dock and concluded that a boat dock constructed with the splice would sustain more than 3,000 pounds of uplift.
On April 15, 1998, Respondent signed and sealed the drawing of a post splice connection with a maximum uplift not to exceed 5,000 pounds. Respondent did not create the drawing but signed and sealed the one already in the possession of
Mr. Norquist.
On or about June 18, 1998, Mr. McCoy signed and sealed what appears to be Respondent's April 15, 1998, drawing. However, Mr. McCoy's drawing shows a maximum uplift not to exceed 3,000 pounds and contains some notes not included with Respondent's drawing.
On August 28, 1998, Mr. McCoy submitted a standard post connection detail to the Building Department. The cover letter states that the post connection detail had been developed in conjunction with Norquist Construction. The drawing was an addendum to the dock design on file with the Building Department.
In the Fall of 1998, Mr. Norquist requested Respondent to prepare additional post splice detail drawings and calculations for tension load capacity for a generic dock. Respondent once again made sure the post splice detail was not supposed to include columns for boat shelters. Thereafter, Respondent complied with this request, signing and sealing the drawings and calculations on November 23, 1998. The calculations show that the dock would withstand 11,900 pounds of uplift.
There is no competent evidence that Respondent was ever retained to become the engineer of record or to perform any work for the construction of any specific boat dock that the Building Department permitted and that Mr. Norquist constructed using Mr. McCoy's master plans. Respondent never visited the site of any such construction; no one ever requested him to
do so.
By letter dated December 1, 1998, Mr. McCoy advised the Building Department that he was submitting revised detail
for a typical dock post splice developed in conjunction with WTL Engineering, Respondent's firm. The letter stated that the documents were submitted as an addendum to the dock design currently on file.
The Building Department received Mr. McCoy's
December 1, 1998, letter on December 21, 1998. The December 1, 1998, letter covered the post splice detail drawings signed and sealed by Respondent on November 23, 1998. The documents did not identify a specific project or include other information such as load criteria, which is generally required on structural engineering documents. The documents became part of the master plan that was not site-specific.
When Mr. McCoy submitted Respondent's November 23, 1998, post splice detail drawings and calculations to the Building Department, he adopted and incorporated Respondent's work into the master plan. However, Mr. McCoy's submittal of Respondent's work does not indicate that Mr. McCoy "delegated" responsibility for the drawings and calculations to Respondent or that Respondent was the "delegated engineer" for a component of the master plan. Instead, Respondent performed the work for Mr. Norquist, not Mr. McCoy.
In February 1999, the Building Department wrote Mr. Dougherty a letter regarding his boat dock. The letter stated that the Building Department had requested and
Mr. Norquist had submitted certain engineering documents for the boat dock. The letter advised that the Building Department could not complete inspections of the boat dock until
Mr. Dougherty allowed Mr. Norquist on the property to finish the construction.
In February 1999, a Circuit Judge conducted a civil trial in Winner v. Norquist Construction Company, Inc., Fifth Judicial Circuit in and for Lake County, Florida, Circuit Court Case No. 98-163-CA. In that trial, Respondent testified that he was only requested to design a splice that would withstand 3,000 pounds of uplift but he had designed one that would withstand 11,900 pounds of uplift. On April 22, 1999, the judge entered a Final Judgment finding that Mr. Winner was not entitled to damages.
By letter dated May 7, 1999, an attorney representing Mr. Winner and Mr. Dougherty filed a complaint with Petitioner. The complaint alleged that Mr. McCoy's master plan did not show a splice joint detail and that such detail had been filed with the Building Department after the Winner boat dock had been completed. The letter raised engineering concerns regarding the engineering drawings, the splice joints including their ability to withstand 100-mile per hour wind, and the piling depth. Petitioner received this complaint on May 10, 1999.
Under cover of a letter dated May 12, 1999, the attorney representing Mr. Winner and Mr. Doughtery sent Petitioner a report prepared by an engineering intern under the direction of Ted Holtz, P.E. According to the report, the intern had examined the Winner boat dock and concluded that it would not withstand 100 miles-per-hour wind. The report also discussed the adequacy or inadequacy of the structure in relation to moment, shear, and deflection, among other things.
Based on the complaint filed on behalf of Mr. Winner and Mr. Dougherty, Petitioner initiated investigations to determine if Mr. McCoy and/or Respondent were guilty of negligence in the practice of engineering contrary to Section 471.033(1)(g), Florida Statutes. These investigations resulted in FEMC Case No. 99-00059 against Mr. McCoy and FEMC Case
No. 99-00092 against Respondent.
On or about July 14, 1999, Stanley Ink, P.E., one of Petitioner's consulting engineers, reported on his review of the case against Mr. McCoy. Mr. Ink reached the following conclusions: (a) the master plan did not show column splices or code criteria for live or wind loads; (b) anchors were noted in the plans but fasteners were not specified; (c) the plans specified No. 4 pine lumber, which is not an approved lumber grade; (d) Respondent's and Mr. McCoy's post splice drawings did not address moment, shear, height of the post or the maximum
load on the post; (e) if a boatlift were installed as set forth in the master plan, it would increase loads and forces to the posts; (f) location and weight limitations on the boatlift should have been specified; (g) the master plans were not adequate for the pictured docks because they left too much for a contractor to assume; (h) the Building Department should not have allowed a permit to be issued with this master plan and post splice detail; and (i) both engineers should have placed limits on the splice detail.
On or about August 12, 1999, Mr. Ink filed a report on his review of the case against Respondent. Mr. Ink reached the following conclusions: (a) it appears that Mr. McCoy is the project engineer with Respondent brought into the case because he signed a splice detail that was included in the file; (b) the splice detail signed by Respondent in April 1998 is the same detail that Mr. McCoy signed after removing Respondent's name and changing the date; (c) Respondent should not be charged with any violation but he should be cautioned to put a specific limitation on any future drawings; and (d) if Respondent had stated that the splice was to be used in tension only applications, it could not have been used on [the Winner or Dougherty] dock.
On October 6, 1999, the Probable Cause Panel met to consider the FEMC Case No. 99-00092 against Respondent. The
panel concluded that there was no probable cause to issue an administrative complaint against Respondent.
On October 19, 1999, the Probable Cause Panel entered a Closing Order finding no probable cause and dismissing
FEMC Case No. 99-00092 against Respondent. That same day, Petitioner sent Respondent a letter advising him that the case was being dismissed. This letter did not contain a caution for Respondent to place appropriate limitations on his drawings in the future.
On October 22, 1999, Petitioner issued an Administrative Complaint against Mr. McCoy in FEMC Case No. 99-00059. This case subsequently became DOAH Case No. 99-5136.
The 1999 Administrative Complaint against Mr. McCoy referenced Mr. McCoy's master plan as it existed in 1995 and as revised in 1997. The complaint alleged that Mr. McCoy has signed and sealed the design of a dock post splice detail to supplement the master plan in August 1998. It did not reference Respondent's November 23, 1998, dock post splice detail that Mr. McCoy submitted to the Building Department in December 1998.
By letter dated November 15, 1999, Respondent offered his support to Mr. McCoy in defending himself before the Probable Cause Panel. Respondent's letter stated that he had reviewed the master plans, finding them structurally adequate
and in conformance with the building code adopted by the Building Department. Respondent concurred with the master plan subject to its adaptation to a specific site with the owner specifying the boat load to be accommodated and subject to the Building Department performing inspections.
On February 17, 2000, George Hovis, Esquire, representing Mr. McCoy, filed a Motion to Strike and Motion for Costs and Attorney's Fees pursuant to Section 120.569(2)(e), Florida Statutes, in DOAH Case No. 99-5136. The motion reviewed the following facts of the case: (a) Mr. McCoy did not design the splice used on the boatlift in question because the splice design was not created until after the boat dock was constructed; (b) the master plan dated May 17, 1995, did not contain a splice design and had never been questioned; (c) the August 25, 1997, master plan, which was filed months after the Winner dock was completed, had never been questioned;
(d) August 28, 1998, was the date that the original L-splice design was filed with the Building Department; (e) Mr. Winner's attorney admitted during the civil trial against Norquist Construction that the November 23, 1998, drawing was prepared well after the Winner dock was constructed; and (f) Mr. McCoy was not named as a party in the Winner civil suit against Norquist Construction. The motion alleged that Petitioner had ignored the findings of the judge in the Winner's civil suit.
On February 25, 2000, Petitioner filed a response in opposition to Mr. McCoy's Motion to Strike and Motion for Cost and Attorney's Fees in DOAH Case No. 99-5136. The response states that, based on additional evidence submitted subsequent to the finding of probable cause, Petitioner's counsel had agreed to resubmit DOAH Case No. 99-5136 against Mr. McCoy to the Probable Cause Panel. Subsequently, the Administrative Law Judge in DOAH Case No. 99-5136 placed the case in abeyance.
In February 2000, Petitioner submitted the case against Mr. McCoy for review by James Power, P.E., another of Petitioner's consulting engineers. Mr. Power's report dated March 7, 2000, references Mr. McCoy's 1995 master plan and the 1997 revisions to the plan. The report also references
Mr. McCoy's August 1998 standard post connection and his December 1998 submittal of a typical dock post splice developed in conjunction with Respondent.
In his March 7, 2000, report, Mr. Power concluded that there was no evidence that Mr. McCoy ever accepted responsibility for the design, construction, or inspection of the Winner or Dougherty docks. He noted that none of the drawings signed and sealed by Mr. McCoy referred to a specific project. According to Mr. Power's report, Mr. McCoy was not responsible for the Building Department's issuance of improper
permits. Finally, Mr. Power opined that he could find no evidence to justify a charge against Mr. McCoy.
By letter dated April 5, 2000, Petitioner's counsel advised the Building Department that Petitioner had filed an Administrative Complaint against Mr. McCoy, alleging negligence in the practice of engineering due to structural deficiencies in the master plan. The letter stated that Petitioner was concerned because the Building Department was not requesting project-specific engineering plans but was issuing permits based on the master plan.
Petitioner requested Mr. Power to review the case against Mr. McCoy for a second time. In a report dated June 6, 2000, Mr. Power referenced the standard dock drawings submitted by Mr. McCoy in May 1995, August 1997, and August 1998. Once again Mr. Power opined as follows: (a) Mr. McCoy's submissions to the Building Department were not sufficiently complete to justify the issuance of building permits; (b) it was regrettable that Mr. McCoy allowed his drawings to be used as he did but that the Building Department was responsible for issuing the permits; (c) Mr. McCoy's drawings were of marginal quality but acceptable if supplemented by complete drawings of a specific installation; (d) the splice detail does not specify where or under what circumstances it is to be used; (e) the splice detail contained a drafting error; (f) Mr. McCoy was not obligated to
provide a design for any structure, which might make use of his splice detail; and (g) it was for an engineer of record, a role Mr. McCoy never undertook, to determine the suitability of the detail in a specific structure for which the engineer of record had assumed design responsibility. In sum, Mr. Power disapproved of the Building Department's permitting policy and the manner in which Mr. McCoy's drawings were used but he did not believe the evidence justified a charge of negligence against Mr. McCoy.
After receiving Mr. Power's reports, Mr. McCoy's attorney and Petitioner's counsel agreed that Petitioner would resubmit the case against Mr. McCoy to the Probable Cause Panel with a recommendation to dismiss the case without further prosecution. Mr. McCoy agreed to withdraw his Motion for Costs and Attorney's Fees and to specify all limitations on the use of his future drawings.
Upon learning that Petitioner might dismiss the Administrative Complaint against Mr. McCoy, Mr. Dougherty became concerned. Petitioner's former president responded to
Mr. Dougherty's concerns in a letter dated June 15, 2000. The letter stated that Petitioner's consulting engineer had concluded that Mr. McCoy was not negligent in preparing and submitting the master plan to the Building Department. The letter also stated that the Winner and Dougherty docks were not
the same or similar to the dock in the master plan. According to the letter, there was no evidence that Mr. McCoy designed the Winner and Dougherty docks.
On July 13, 2000, the Probable Cause Panel discussed the case against Mr. McCoy. Based on the prosecutor's recommendation and review of the entire file including
Mr. Power's reports, the panel decided to find no probable cause and to dismiss the case against Mr. McCoy without further prosecution.
On July 28, 2000, the Probable Cause Panel issued a Closing Order in FEMC Case No. 99-00059. The order stated that the case would be dismissed with a letter to Mr. McCoy advising him in the future to specify on his plans conditions under which his seal was not valid.
On August 2, 2000, Petitioner's counsel filed a Status Report in DOAH Case No. 99-5136. This pleading stated that the Probable Cause Panel had reconsidered the case, closing it without further prosecution. The pleading requested the Administrative Law Judge to close the file.
By letter dated August 2, 2000, Petitioner advised Mr. McCoy that the Probable Cause Panel had reconsidered his case and directed the case to be dismissed without further prosecution. The letter also advised Mr. McCoy that in the future he should specify on the face of his plans any
limitations or conditions under which his seal would not be valid. Mr. McCoy has complied with this request.
The Administrative Law Judge entered an Order Closing File in DOAH Case No. 99-5136 on August 17, 2000.
Subsequently, Mr. Dougherty contacted Petitioner's prosecuting attorney by telephone. The prosecuting attorney advised Mr. Dougherty that if Petitioner were presented with new evidence showing that Mr. McCoy was the engineer of record for his dock, Petitioner would reopen the case against Mr. McCoy.
In February 2001, Mr. Dougherty furnished Petitioner with the deposition testimony of one of the Building Department's inspectors. The deposition testimony had been taken in August 22, 2000, in conjunction with a civil suit filed by Mr. Dougherty against Norquist Construction. See Joseph
Dougherty and Patricia Dougherty v. Norquist Construction Company, Inc., Fifth Judicial Circuit in and for Lake County, Florida, Circuit Court Case No. 98-986 CA. The deposition testimony indicated that Mr. McCoy was the engineer of record for the Dougherty boat dock. This was the first time that the deposition testimony had been provided to Petitioner.
Mr. Dougherty's second complaint also included the following: (a) a copy of Respondent's November 15, 1999, letter, offering to support Mr. McCoy in his defense of Petitioner's 1999 case against Mr. McCoy; (b) a report prepared
by R. Alan Lougheed of Lougheed Resource Group, Inc.; and (c) a report prepared by Robert White.
After receiving Mr. Dougherty's second complaint, Petitioner's investigator reviewed Mr. McCoy's and Respondent's files. He determined that, in the prior cases against Mr. McCoy and Respondent, Petitioner had overlooked whether the master plan and post splice detail contained information regarding the capacity of structures built pursuant to the plans to withstand a 100 mile-per-hour wind. Therefore, Petitioner's investigator concluded that Mr. Dougherty's second complaint did not represent an exact duplicate of the 1999 cases against Mr. McCoy and Respondent.
Petitioner subsequently opened FEMC Cases No. 01-0022 and 01-0023 against Mr. McCoy and Respondent respectively.
Petitioner's investigator referred Mr. McCoy's and Respondent's files to another consulting engineer, Iqbal Shaikh,
P.E. The purpose of the referral was to determine once again if Mr. McCoy and/or Respondent had committed negligence in the practice of engineering.
In a report dated August 16, 2001, Iqbal Shaikh, P.E., sets forth the documents that he reviewed in both cases. These documents included the following: (a) Mr. Dougherty's second complaint; (b) Mr. McCoy's 1995 master plan; (c) Mr. McCoy's August 28, 1998, post connection splice detail; (d) Respondent's
November 15, 1999, letter; (e) Respondent's November 23, 1998, post splice drawings and calculations; (f) the August 22, 2000, deposition testimony of the Building Department's inspector; and
an inspection report prepared by Lougheed Resource Group, Inc.
Mr. Shaikh's report found that Mr. McCoy's work was deficient for the following reasons: (a) the 1995 master plan did not identify the project, show design load criteria for wind loads and gravity load, or show the details for the assembly of the laminated lift beam; and (b) the December 1998 submittal of Respondent's November 23, 1998, post splice detail drawings and calculations did not identify the project and only showed tension load without showing compression, moment, and shear capacity of the splice. Mr. Shaihk's report states that Respondent's November 23, 1998, drawings and calculations were deficient because they failed to identify the project and they did not show compression, moment, and shear capacity or limitation of the splice detail.
Based on Mr. Shaikh's report, Petitioner issued the Administrative Complaint against the Mr. McCoy in FEMC Case No. 01-0022 (DOAH Case No. 01-4756PL). Petitioner also issued the Administrative Complaint against Respondent in FEMC Case No. 01-0023, which became the instant case.
The parties agreed to present the deposition testimony of Mr. Power in lieu of testimony at hearing. Mr. Power testified that he would not rely solely on the testimony of a building inspector to determine whether Mr. McCoy was engineer of record for the Dougherty dock. Mr. Power reaffirmed his earlier opinions that Mr. McCoy was not the engineer or record for any specific dock and that he was not guilty of negligence or of violating a rule because the master plan and parts thereof were not site-specific. Mr. Power's testimony is credited here.
On the other hand, Petitioner presented the testimony of Nasir Alam, P.E., another of Petitioner's consulting engineers and a member of Mr. Shaikh's firm. Mr. Alam testified that Mr. McCoy was the engineer of record for any projects constructed using the master plan signed and sealed by
Mr. McCoy. Mr. Alam testified that Mr. McCoy was the engineer of record for the November 23, 1998, post splice detail drawings and calculations if Mr. McCoy had submitted those documents to the Building Department after delegating the responsibility for them to Respondent. Mr. Alam also testified that it was immaterial to this case whether Mr. McCoy or Respondent was engineer of record for the Dougherty dock because the master plan and post splice detail drawings and calculations on their face represented the negligent practice of engineering.
Mr. Alam's testimony is not persuasive.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.
Petitioner is a Florida not-for-profit corporation, which under Section 471.038(3), Florida Statutes, is authorized to "provide administrative, investigative, and prosecutorial services" for the Board of Professional Engineers (Board).
Section 471.033(1)(a), Florida Statutes, authorizes the Board to discipline an engineer proved guilty of violating one of the Board's rules. Similarly, Section 471.033(1)(g), Florida Statutes, authorizes the Board to discipline an engineer proved guilty of negligence in the practice of engineering.
Petitioner must prove that Respondent violated Section 471.033(1)(g), Florida Statutes, by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Company, 670 So. 2d 932 (Fla. 1996).
Before determining whether Petitioner met its burden to prove that Respondent is guilty of negligence, Respondent's defenses of res judicata and judicial immunity must be resolved. For the reasons set forth below, these defenses do not apply to this proceeding.
Administrative proceedings recognize the doctrines of res judicata. Thompson v. Department of Environmental
Regulation, 511 So. 2d 989, 990 (Fla. 1987).
In Department of Environmental Protection v. Burgess, 667 So. 2d 267, 269 (Fla. 1st DCA 1995), the court stated as follows:
Clearly the doctrine of res judicata may apply to an agency determination made pursuant to the agency's quasi-judicial decision-making authority. [Citation Omitted] For res judicata to act as a bar to subsequent relitigation, however, there must be a final agency order in a prior proceeding and identity in "(1) the thing sued for; (2) . . . the cause of action;
(3) . . . [the] persons and parties of the action; and (4) . . . the quality in the person for or against whom the claim is made." [Citation Omitted]
In this case, there was no final agency order in
FEMC Case No. 99-00092. Instead, the Probable Cause Panel found no probable cause and dismissed the case. The decision to dismiss the case without issuing an administrative complaint, conducting an administrative hearing on the merits, and issuing of a final order by the Board was not an action adverse to Respondent that would bar further prosecution. The Board never decided the prior case on its merits. Therefore, res judicata does not apply in this case.
Likewise, Respondent's claim that he is entitled to judicial immunity for the November 23, 1998, dock post splice
drawings and calculations is without merit. These documents may have been presented to the trial court in Mr. Winner's civil trial against Norquist Construction but they were filed with the Building Department as an addendum to Mr. McCoy's master plan.
Before Respondent prepared the documents, he made sure he understood how Mr. Norquist intended to use them.
Turning to the merits of the case, Rule
61G15-19.001(4), Florida Administrative Code, states as follows:
(4) 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. Failure to comply with the procedures set forth in the Responsibility Rules as adopted by the Board of Professional Engineers shall be considered as non-compliance with this section unless the deviation or departures therefrom are justified by the specific circumstances of the project in question and the sound professional judgment of the professional engineer.
Rule 61G15-31, Florida Administrative Code, sets forth the Responsibility Rules of Professional Engineers Concerning the Design of Structures. Rule 61G15-31.001, Florida Administrative Code, states as follows:
The engineer of record for a structure is responsible for all structural aspects of the design of the structure including the design of all of the structure's systems and components. As noted herein the engineer of record for a structure may delegate responsibility for the design of a system or component part of the structure to a qualified delegated engineer. In either case, the structural documents shall address, as a minimum, the items noted in the following subsections covering specific structural systems or components. Both the engineer of record for the structure and the delegated engineer, if utilized, shall comply with the requirements of the general responsibility rules, and with the requirements of the more specific structural responsibility rules contained herein.
Rule 61G15-31.002, Florida Administrative Code, states as follows:
Engineer of Record for the Structure. The Florida registered professional engineer who develops the structural design criteria and structural framing concept for the structure, performs the analysis and is responsible for the preparation of the structural construction documents.
Structural Component. An individual structural member designed to be part of a structural system.
Structure. The entity to be built.
Structural System. A portion of a structure comprising an assembly of structural components.
Structural Engineering Documents. The structural drawings, specification and other documents setting forth the overall design and requirements for the construction, alteration, modernization, repair, removal, demolition, arrangement
and/or use of the structure, prepared by and signed and sealed by the engineer of record for the structure. Structural engineering
documents shall identify the project and specify design criteria both for the overall structure and for structural components and structural systems. The drawings shall identify the nature, magnitude and location of all design loads to be imposed on the structure. The structural engineering documents shall provide construction requirements to indicate the nature and character of the work and to describe, detail, label and define the structure's components, systems, materials, assemblies, and equipment.
Structural Submittals. Submittals required by the structural engineering documents which do not require the seal of a professional engineer, such as:
Drawings prepared solely to serve as a guide for fabrication and installation and requiring no engineering input such as reinforcing steel shop drawings, structural steel, and steel joints and joist girder erection drawings.
Catalog information on standard products not fabricated for a specific project.
Structural Delegated Engineering Documents. Documents prepared by a delegated engineer to whom the engineer of record for the structure has delegated responsibility for the design of a structural component or system.
In the Administrative Complaint, Petitioner alleges that Respondent signed and sealed post splice detail drawings and calculations dated November 23, 1998, which only showed tension load capacity and which did not show compression, moment, and shear capacity or limitation of the splice design. Based on this allegation, Petitioner alleges that Respondent
violated Section 471.033(1)(g), Florida Statutes, because he was negligent in the practice of engineering.
It is clear that Rule 61G15-31.002(5), Florida Administrative Code, contemplates the inclusion of compression, moment, and shear capacity or limitation of a splice design in a structural engineering document if the document relates to a specific construction project. However, the rule does not specify that these criteria must be included when the engineer's client, who is an experienced contractor, has limited the scope of the engineer's work to a generic dock post splice showing tension load capacity only. The rules in Chapter 61G15, Florida Administrative Code, on their face do not answer this question. Therefore, it is necessary to consider the custom and usage in the engineering profession in interpreting the rule.
There is no consensus in the engineering profession regarding an engineer's responsibility under the facts of this case. However, persuasive evidence indicates that Respondent's work was adequate. Mr. Norquist limited the scope of Respondent's work to include tension load capacity only. Respondent was not designing a structural component as an engineer of record or a delegated engineer. He simply provided Mr. Norquist with requested engineering documents, no more or less. Respondent is responsible only for the design criteria displayed on his plans. Respondent cannot be faulted because
additional or different information was required for the construction of a specific dock pursuant to a contract between Mr. Norquist and a third party.
The Building Department should not have allowed Mr. Norquist to pull permits for specific projects if the
information in the master plan or in Respondent's documents was insufficient for those projects. In any event, Respondent had no obligation to supplement his work with site-specific information when he was not retained for that purpose.
To the extent that Respondent's documents failed to comply with the requirements of Rule 61G15-31.002(5), the record here shows that any deviation or departure therefrom was allowed by the specific circumstances of the project in question and Respondent's sound professional judgment. The project in question is a generic dock post splice design. The specific circumstance is that Respondent's work was limited in scope by Mr. Norquist.
The evidence is not clear and convincing that Respondent was negligent in showing only tension load capacity and in failing to show compression, moment, and shear capacity or limitation of the splice design in the November 23, 1998, post splice detail drawings and calculations. Therefore, Petitioner has failed to meet its burden of proving that Respondent violated Section 417.033(1)(g), Florida Statutes.
Finally, Respondent is not entitled to attorney's fees and costs pursuant to Section 120.595(1), Florida Statutes. Petitioner did not file the Administrative Complaint in this case for an improper purpose as defined in Section 120.595(1), Florida Statutes, which states as follows in pertinent part:
The final order in a proceeding pursuant to S. 120.57(1) shall award reasonable costs and a reasonable attorney's fee to the prevailing party only where the nonprevailing adverse party has been determined by the administrative law judge to have participated in the proceeding for an improper purpose.
In proceedings pursuant to s. 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose as defined by this subsection and s. 120.569(2)(c). In making such determination, the administrative law judge shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same prevailing party and the same project as an adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position, and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceeding. In such event, it shall be rebuttably presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose.
* * *
(e) For the purposes of this subsection:
1. "Improper purpose" means participation in a proceeding to harass or to cause
unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity.
There was no prevailing party or nonprevailing adverse party in the 1999 case, which was never decided on its merits. In the prior case, neither party established the factual or legal merits of its position as part of litigation because an administrative complaint was never issued. Respondent's motion for costs and attorney's fees pursuant to Section 120.595(1), Florida Statutes, as set forth in his Proposed Recommended Order should be denied.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That Petitioner enter a final order dismissing the Administrative Complaint and denying Respondent's motion for costs and attorney's fees pursuant to Section 120.595, Florida Statutes.
DONE AND ENTERED this 9th day of July, 2002, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
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 9th day of July, 2002.
COPIES FURNISHED:
Michael C. Norvell, Esquire Michael C. Norvell, P.A. Post Office Box 491615
Leesburg, Florida 34749-1615
Douglas Sunshine, Esquire Florida Engineers Management
Corporation
2507 Callaway Road, Suite 200
Tallahassee, Florida 32303
Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and
Professional Regulation 2507 Callaway Road, Suite 200
Tallahassee, Florida 32303-5267
Hardy L. Roberts, III, General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-2202
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 10, 2003 | Agency Final Order | |
| Jul. 09, 2002 | Recommended Order | Respondent not negligent in preparing generic dock post splice drawings and calculations showing tension load capacity only. |
