STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS )

MANAGEMENT CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 02-2735PL

)

EMILIO R. PINERO, P.E., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on September 16, 2002, with the Respondent appearing from Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Douglas D. Sunshine, Esquire

Prosecuting Attorney Florida Engineers

Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

For Respondent: Arnaldo Velez, Esquire

Arnaldo Velez, P.A.

35 Almeria Avenue

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether the Respondent, Emilio R. Pinero, P.E., committed the offenses alleged in an Administrative Complaint issued March 26, 2001.

PRELIMINARY STATEMENT

This matter was originally brought to the Division of Administrative Hearings as DOAH Case No. 02-0083PL. The parties represented that a settlement would be reached and the issues resolved. By order dated March 15, 2002, DOAH Case No. 02-0083PL was closed and jurisdiction was relinquished to the agency.

Thereafter, on July 3, 2002, the Petitioner, Florida Engineers Management Corporation, referred the matter back to the Division of Administrative Hearings as the parties' efforts to reach a settlement proved unsuccessful. The re- opened case was assigned DOAH Case No. 02-2735PL. This case (like its predecessor) travels on an Administrative Complaint issued against the Respondent, Emilio R. Pinero, P.E., on March 26, 2001.

Such complaint alleged that the Respondent had engaged in negligence in the practice of engineering by failing to employ appropriate engineering standards in the design and calculations for a ramp, stage, and guardrail. The Respondent

denied the violations and requested a formal hearing in connection with the charges.

At the hearing, the Petitioner presented testimony from Robert Valdes, the structural plan review supervisor for the Miami-Dade County Building Department; and James Owen Power, a consulting structural engineer. The Petitioner's Exhibits 1 and 2 were admitted into evidence.

The Respondent testified in his own behalf and offered the testimony of Leston M. Rodriguez, a candidate to be registered as a civil engineer. The Respondent did not offer exhibits into evidence.

The Transcript of the proceedings was filed with the Division of Administrative Hearings on October 1, 2002.

Thereafter, the parties filed Proposed Recommended Orders that have been fully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to the allegations of this case, the Respondent, Emilio R. Pinero, P.E., has been registered as a licensed engineer in the State of Florida, license number PE 48352.

2. The Petitioner is the entity charged by the State of Florida to regulate the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes.

3. Prior to July 3, 2000, organizers for a festival sought a building permit to erect a stage, ramp, and grandstand to be constructed from wood. The permit request was made to the Miami-Dade County Building and Zoning Department and was rejected, as it was neither signed nor sealed by a qualified person.

4. When later contacted by the festival organizers, the Respondent agreed to prepare the necessary documents in order for them to obtain the building permit.

5. At the Respondent's direction, Mr. Rodriguez prepared drawings and calculations for the festival organizers.

6. Mr. Rodriguez is not licensed or registered to perform engineering in the State of Florida. Although he was trained in Cuba and Germany, Mr. Rodriguez utilized improper engineering criteria to calculate the information needed for the subject permit.

7. In fact, the formulas, drawings, and structures described in the permit documents were "meaningless."

8. For reasons not fully explained in this record, the Respondent signed and sealed the permit documents.

9. The festival organizers then submitted the erroneous documents to the Building and Zoning Department so that the permit might be issued. It was not. Instead, the building official rejected the plans and refused to issue the permit.

10. Although the original documents no longer exist,

    
    

    Mr. Valdes was certain that the papers he reviewed were signed and sealed by the Respondent. It is undisputed that the Respondent signed the papers submitted for the permit. Copies in existence do not reproduce the raised portion of the seal. The Respondent does not recall placing his seal on the documents. Mr. Rodriguez did not believe the documents were placed under seal.

11. Nevertheless, the Respondent maintains that the drawings were only preliminary and would have been corrected had the Building and Zoning Department returned them. To the contrary, it is determined that the Building and Zoning Department, as a matter of policy and practice, does not correct plans and calculations under the circumstances described in this case.

12. The calculations and drawings were rejected and a permit was not issued. No public harm resulted from the use of the calculations and drawings as they were not utilized by the festival organizers.

13. The Respondent admitted that the wrong engineering criteria were applied in the preparation of the calculations and drawings.

14. The Respondent is currently 78 years of age. He no longer engages in the field of structural engineering, and he

    rarely prepares calculations and drawings for the purpose of issuance of building permits.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57, Florida Statutes.

16. Section 471.038(3), Florida Statutes, provides:

    
    

    (3) The Florida Engineers Management Corporation is created to provide administrative, investigative, and prosecutorial services to the board in accordance with the provisions of chapter

    455 and this chapter. The management corporation may hire staff as necessary to carry out its functions. Such staff are not public employees for the purposes of chapter 110 or chapter 112, except that the board of directors and the staff are subject to the provisions of s. 112.061. The provisions of s. 768.28 apply to the management corporation, which is deemed to be a corporation primarily acting as an instrumentality of the state, but which is not an agency within the meaning of s. 20.03(11). The management corporation shall:

    1. Be a Florida corporation not for profit, incorporated under the provisions of chapter 617.

    2. Provide administrative, investigative, and prosecutorial services to the board in accordance with the provisions of chapter 455, this chapter, and the contract required by this section.

    
    

17. Section 471.033, Florida Statutes, provides, in pertinent part:

    471.033 Disciplinary proceedings.–

    (1) The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:

    
    

    * * *

    
    

    1. Engaging in fraud or deceit, negligence, incompetence, or misconduct, in the practice of engineering.

       
       

       * * *

       
       

       1. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

          
          

          * * *

          
          

          1. Imposition of an administrative fine not to exceed $1,000

             
             

             * * *

             
             

          2. Issuance of a reprimand.

          3. Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify.

          4. Restriction of the authorized scope of practice by the licensee.

    
    

18. Rule 61G15-19.001(4), Florida Administrative Code, addresses "negligence" as follows:

    1. 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.

    
    

19. The Petitioner bears the burden of proof to establish by clear and convincing evidence the violations alleged in the Administrative Complaint. In this case it has met that burden. The Respondent failed to use due care in the preparation of calculations and drawings submitted to the Miami-Dade County Building and Zoning Department. He allowed an unlicensed, unregistered person to draft the materials, failed to properly review them, and signed them for submission with the knowledge that they might be relied upon for a building permit. Such behavior constitutes "negligence" as that term is defined by the practices for engineering.

20. Rule 61G15-19.004, Florida Administrative Code, provides the guidelines for penalties to be imposed when a violation of law occurs. In this case, the rule specifies a range of disciplinary guidelines from which disciplinary penalties will be imposed upon practitioners (including

    holders of certificate of authorization) guilty of violating Chapter 471, Florida Statutes. The purpose of the disciplinary guidelines is to give notice to licensees of the range of penalties that will normally be imposed upon violations of particular provisions of the law. As to this case specifically, the rule provides for penalties ranging from an administrative fine, to a reprimand, to probation, to revocation depending on the circumstances. Circumstances that may aggravate or mitigate the penalty are also described by the rule.

21. Pertinent to this case are the following provisions of the disciplinary guidelines:

    1. The board shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances by clear and convincing evidence presented to the board prior to the imposition of a final penalty. The fact that a Hearing Officer of the Division of Administrative Hearings may or may not have been aware of the below mentioned aggravating or mitigating circumstances prior to a recommendation of penalty in a Recommended Order shall not obviate the duty of the board to consider aggravating and mitigating circumstances brought to its attention prior to the issuance of a Final Order.

       1. Aggravating circumstances; circumstances which may justify deviating from the above set forth disciplinary guidelines and cause the enhancement of a penalty beyond the maximum level of discipline in the guidelines shall include but not be limited to the following:

          1. History of previous violations of the practice act and the rules promulgated thereto.

          2. In the case of negligence; of the magnitude and scope of the project and the damage inflicted upon the general public by the licensee's misfeasance.

          3. Evidence of violation of professional practice acts in other jurisdictions wherein the licensee has been disciplined by the appropriate regulatory authority.

          4. Violation of the provision of the practice act wherein a letter of guidance as provided in F.S. 455.225(3) has previously been issued to the licensee.

       2. Mitigating circumstances; circumstances which may justify deviating from the above set forth disciplinary guidelines and cause the lessening of a penalty beyond the minimum level of discipline in the guidelines shall include but not be limited to the following:

          1. In cases of negligence, the minor nature of the project in question and lack of danger to the public health, safety and welfare resulting from the licensee's misfeasance.

          2. Lack of previous disciplinary history in this or any other jurisdiction wherein the licensee practices his profession.

          3. Restitution of any damages suffered by the licensee's client.

          4. The licensee's professional standing among his peers including continuing education.

          5. Steps taken by the licensee or his firm to insure the non- occurrence of similar violations in the future.

22. In this case the Petitioner has demonstrated no aggravating circumstances to warrant an increase in penalty for the violation established. To the contrary, it is concluded that there are mitigating circumstances that must be addressed. First, the Respondent has taken steps to ensure that the problem will not reoccur, as he no longer performs this type of work. Second, there were no actual damages from the issuance of the calculations and drawings; consequently, no restitution was necessary. Finally, the scope of the project was fairly small and the permit was not issued; therefore, by its nature it resulted in no harm to the public.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a Final Order reprimanding the Respondent for negligence in the performance of his duties, imposing an administrative fine in the amount of $1,000.00, and placing him on probation for a period of two years.

DONE AND ENTERED this 31st day of October, 2002, in Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH 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 31st day of October, 2002.

COPIES FURNISHED:

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 Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Arnaldo Velez, Esquire Arnold Velez, P.A.

35 Almeria Avenue

Coral Gables, Florida 33134

Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

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: 02-002735PL

Orders for Case No: 02-002735PL