STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT ) CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 03-0204PL

)

JOHN F. SHEILS, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in West Palm Beach, Florida, on April 14, 2003.

APPEARANCES

For Petitioner: Attorney Douglas D. Sunshine

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

For Respondent: Attorney Barry D. Goldman

2155 South Ocean Boulevard, Unit 21 Delray Beach, Florida 33483

STATEMENT OF THE ISSUES

The issue is whether Respondent is guilty of engaging in misconduct in the practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes, and engaging in negligence in the practice of engineering, in violation of

Section 471.033(1)(g), Florida Statutes. If so, an additional issue is what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed July 23, 2002, Petitioner alleged that Respondent was hired to perform an inspection of a residential roof, conducted the inspection, and issued a report dated April 12, 2001. Based on the report, the Palm Beach County Building Inspector's office allegedly determined that the roof was acceptable and would remain in place after a major storm.

Count One of the Administrative Complaint alleges that Respondent's report lists deficiencies, but fails to address directly the structural integrity of the roof or its conformance to Building Code specifications. Count One alleges that the report initially finds the roof to be adequate, but later contradicts itself. Count One alleges that the report is misleading because it does not certify that the roof sheathing meets current Building Code requirements, in violation of Rule 61G15-19.001(6)(b), Florida Administrative Code. Count One alleges that Respondent thus committed misconduct in the practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes.

Count Two alleges that the April 12 inspection report states that many areas of the roof are not attached, as required

by the Building Code. Count Two alleges that Respondent performed only a cursory inspection of the roof and failed to determine that it failed to meet the wind-load specifications of a 100 mile-per-hour storm. Count Two alleges that Respondent thus committed negligence in the practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes.

At the hearing, Petitioner dismissed Count Two of the Administrative Complaint. Petitioner called four witnesses and offered into evidence 12 exhibits: Petitioner Exhibits 1-12.

Respondent called three witnesses and offered into evidence five exhibits: Respondent Exhibits 1-5. All exhibits were admitted except Petitioner Exhibits 2, 3, and 9 and Respondent Exhibits 3-5.

The court reporter filed the transcript on May 7, 2003.

The parties filed their proposed recommended orders by June 30, 2003.

FINDINGS OF FACT

1. At all material times, Respondent has been a licensed professional engineer, holding license number PE 36170.

2. On May 14, 1998, Phil and Kate Kribbs hired Al Pestana to replace a roof on their home, which was located at 7903 St. Andrews Road in Lake Worth. By July 20, 1998, Mr. Pestana completed the installation of a new shingle roof over the pre- existing shake roof, and, on the same date, the Palm Beach

   County Building Inspector inspected the work and issued a Certificate of Completion.

3. A dispute later developed between the Kribbses and Mr. Pestana concerning the quality of the work that he had

   performed. The Kribbses hired a consultant, who opined that the work contained serious defects. The Kribbses, Mr. Pestana, and the Building Department engaged in periodic discussions over a relatively long period of time.

4. On April 12, 2001, Mr. Pestana hired Respondent to examine the roof and issue a report. Respondent conducted a physical examination of the visible portions of the interior and exterior of the roof, accessing as much of the roof as he could from the attic and walking upon as much of the roof as he could.

5. The parties addressed at length the issue of the structural integrity of the roof. However, for the purpose of determining whether Respondent committed misconduct in the practice of engineering, it is unnecessary to address the condition of the roof. Respondent's report, alone, constitutes misconduct in the practice of engineering.

6. The report states that the roof would withstand winds of 70 miles per hour and a "major storm." As Respondent knew at the time, the applicable design wind speed is 100 miles per hour over a specified interval. At the hearing, Respondent acknowledged, as he did in the report, that he mentioned 70

   miles per hour because this is the maximum wind speed that shingles must withstand before detaching from the sheathing.

7. However, the perils of detached shingles and a detached roof are entirely different in gravity. The issue of concern to the Building Department and the Kribbses was the peril of an inadequately attached roof detaching from the house during the design storm event--a far more dangerous contingency than detached shingles.

8. Respondent's references to "major storm" and 70 miles per hour, in the absence of any mention of the design storm and whether the roof meets this more demanding standard, constitutes a deliberate attempt to mislead the Kribbses and possibly the Building Department concerning the adequacy of the means by which Mr. Pestana had attached the roof to the Kribbs' house. This deliberate attempt to mislead constitutes misconduct in engineering.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

10. Section 471.033(1)(g) provides that the Board of Professional Engineers may impose discipline if an engineer

    engages in "misconduct" in the practice of engineering. Section 471.033(3) authorizes discipline of a reprimand, suspension,

    $1000 administrative fine, practice restrictions, and probation.

    
    

11. Rule 61G15-19.001(6)(b) defines "misconduct" in the practice of engineering, in part, as being "misleading . . . in any professional report" or "omitting relevant and pertinent information from such report . . . when the result of such omission would or reasonably could lead to a fallacious conclusion on the part of the client, employer or the general public."

12. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

13. Petitioner has proved that Respondent committed misconduct in the practice of engineering.

14. Rule 61G15-19.004(2)(s) provides a penalty guideline for misconduct in engineering. The guideline is a range from a reprimand, $1000 fine, and one year's probation to a $5000 fine, two years' probation, and one year's suspension. In its proposed recommended order, Petitioner seeks a reprimand, $1000 fine, two years' probation, and costs.

RECOMMENDATION

It is

RECOMMENDED that the Board of Professional Engineers enter a final order finding Respondent guilty of misconduct in the practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes, and imposing a reprimand, an administrative fine of $1000, two years' probation, and costs. If the costs cannot be stipulated within a reasonable period of time, the Board may provide Respondent with a new point of entry for a hearing at the Division of Administrative Hearings on costs.

DONE AND ENTERED this 4th day of August, 2003, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 4th day of August, 2003.

COPIES FURNISHED:

Barry D. Goldman

2155 South Ocean Boulevard, Unit 21 Delray Beach, Florida 33483

Douglas Sunshine

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

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

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-000204PL

Orders for Case No: 03-000204PL