STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT CORPORATION,

Petitioner,

vs.

JOHN B. BENSON, P.E.,

Respondent.

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) Case No. 05-4274PL

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RECOMMENDED ORDER

The final hearing in this case was held on May 9, 2006, in Tallahassee, Florida, before Bram D. E. Canter, an Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Bruce Campbell, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

For Respondent: James W. Linn, Esquire

Glenn E. Thomas, Esquire Lewis, Longman & Walker, P.A.

125 South Gadsden Street, Suite 300 Post Office Box 10788

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated an order of the Board of Professional Engineers (Board) previously

entered in a disciplinary proceeding, and, if so, what disciplinary action is appropriate.

PRELIMINARY STATEMENT

On November 21, 2005, Petitioner filed an Administrative Complaint against Respondent, charging him with violating Subsection 471.033(1)(k), Florida Statutes (2004),1 by engaging in the practice of electrical engineering, which was prohibited by a 2002 order of the Board. Respondent requested a hearing to contest the factual allegations of the Administrative Complaint, and the matter was referred to DOAH to conduct an evidentiary hearing.

At the hearing, Petitioner presented the testimony of Homer Ooten, P.E., who was accepted as an expert in electrical engineering and building inspections. Petitioner's Exhibits 1 through 4 were admitted into evidence. Respondent testified on his own behalf. Respondent's Exhibits 1 through 7 were admitted into evidence. The parties submitted timely Proposed Recommended Orders that were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is a licensed professional engineer in Florida and holds license PE 20638. He has held the license continuously since 1979.

2. In 2000, Petitioner brought a disciplinary action against Respondent, styled FEMC v. John B. Benson, III, P.E., Department of Business and Professional Regulation Case No. BPR- 2000-04871, for alleged negligence in preparing a deficient electrical plan and related misconduct in connection with the construction of an addition to a church. The case terminated with the Board's Final Order Approving Settlement Stipulation ("2000 Final Order").

3. In the parties' Settlement Stipulation, Respondent agreed to pay a fine and to be permanently prohibited from practicing electrical engineering.

4. On September 17, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for electrical inspection of the "rough-in"2 electrical work associated with construction at 4915 26th Street, West, Building A, in Bradenton, Florida.

5. On September 17, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for electrical inspection of the rough-in electrical work associated with construction at 4915 26th Street, West, Building J.

6. On December 1, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for final electrical inspection of the electrical work associated with construction at 4915 26th Street, West, Building A.

7. On December 3, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for final electrical inspection of the electrical work associated with construction at 13411 Blythfield Terrace, Bradenton, Florida.

8. No allegation was made, or evidence introduced to show, that the inspection reports referred to in paragraphs 4

   through 7 contained errors or that the inspections were deficient.

9. Mr. Ooten, an expert in electrical engineering and building inspections, testified that building officials usually require an electrical plan to be included in building plans, but the electrical plan does not have to be signed and sealed by an electrical engineer.

10. On December 17, 2004, the Board received a complaint from the chief building official for Manatee County, regarding Respondent's signing and sealing electrical inspections in 2004, contrary to the Board's 2000 Final Order prohibiting Respondent from practicing electrical engineering. This complaint and the Board's subsequent investigation led to the Administrative Complaint which is the subject of this case.

11. Respondent's defense to the charges in the Administrative Complaint is that he understood the Board's 2000 Final Order to prohibit him from designing an electrical plan. He did not think he was prohibited from signing and sealing

    electrical inspections, or from signing and sealing construction plans that included electrical components.

12. On March 25, 2005, the Board received another complaint from the chief building official for Manatee County, who claimed that Respondent signed and sealed an electrical plan for a building for the Lemur Conservation Foundation. In response to this second complaint, Respondent informed the Board that he had placed a disclaimer statement on the building plans that "These plans have been reviewed for adequacy of structural components and systems only in compliance with FBC 01 Section 1606 130 MPH." Respondent placed this statement only on the first page of the building plans.

13. As a consequence of this second complaint and investigation, Respondent was issued a "Letter of Guidance." No Letter of Guidance, clearly identified as such, is contained in the record. Respondent's Exhibit 1 includes a "Closing Order" of Petitioner, dated August 8, 2005, which may constitute the Letter of Guidance. It contains a statement directed to Respondent:

    The panel cautions the Subject that when he signs any page of plans he is responsible for all engineering depicted on the page unless the limitation of his analysis and approval appears clearly on the same page.

    
    

14. Respondent asserts that, until the Letter of Guidance was issued, he did not understand that his inspection of

    electrical components and systems was the practice of electrical engineering. The Letter of Guidance, however, did not address the issue of the propriety of Respondent's four electrical inspections. The Letter of Guidance was a response to the second complaint about Respondent's signing and sealing an electrical plan, and his defense that he used a disclaimer statement to indicate that his signature and seal was not a representation about the electrical plan. The essence of the Board's "guidance" to Respondent was to make his disclaimer regarding the electrical components more explicit.

    CONCLUSIONS OF LAW

    
    

15. DOAH has jurisdiction of the parties to and the subject matter of these proceedings pursuant to Subsections 120.569(1), 120.57(1), and 455.225(5), Florida Statutes (2005).

16. Subsection 471.033(1)(k), Florida Statutes, empowers the Board to take disciplinary action against an engineer for violating any order of the Board previously entered in a disciplinary proceeding.

17. The Board is empowered to revoke, suspend, or otherwise discipline the license of a professional engineer for a violation of Subsection 471.033(1)(k), Florida Statutes. Pursuant to Subsection 455.227(3)(a), Florida Statutes, the Board may also assess its costs related to the investigation and

    prosecution of a case, excluding costs associated with an attorney's time.

18. Because the remedies sought by Petitioner are penal in nature, it must prove the allegations of its Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996). The clear and convincing evidence standard:

    [R]equires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the 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 v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

19. Subsection 471.005(7), Florida Statutes, defines "engineering" in pertinent part as:

    1. ny service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as . . . the inspection of construction for the purpose of determining in general if the work is proceeding in compliance with drawings and specifications.

       
       

20. There is no definition in Chapter 471, Florida Statutes, for "electrical engineering." The parties have not

    suggested a meaning that would differ from its obvious meaning-- engineering (as defined in Subsection 471.005(7), Florida Statutes) that involves electrical components and systems.

21. Considering the statutory definition of "engineering," which expressly includes "inspection of construction," Respondent's signing and sealing of four inspections of electrical work was the practice of electrical engineering.

22. A licensee is charged with knowing the practice act that governs his or her license. See Wallen v. Florida Department of Professional Regulation, 568 So. 2d 975 (Fla. 3d DCA 1990).

23. Petitioner met its burden to prove by clear and convincing evidence that Respondent violated the prohibition against practicing electrical engineering contained in the 2000 Final Order.

24. Respondent's testimony that he did not think his inspection of electrical work was a violation of the prohibition against practicing electrical engineering is credible. Nevertheless, he is accountable for his mistake.

25. Pursuant to Florida Administrative Code Rule 61G15- 19.004(2)(d), the disciplinary guideline for a violation of a final order of the Board ranges from a minimum penalty of license suspension and a fine of $1,000 to a maximum penalty of license revocation and a fine of $5,000.

26. Florida Administrative Code Rules 61G15-19.004(3)(a) and (b) set forth a number of aggravating and mitigating factors, respectively, that entitle the Board to deviate from the disciplinary guidelines. The aggravating factors are:

    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 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 Section 455.225(3), F.S., has previously been issued to the licensee.

    
    

    The mitigating factors are:

    
    

    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.

    
    

27. Petitioner argues that the Board is entitled to deviate above the maximum penalties because of Respondent's history of previous violations (represented by the 2000 Final Order) and the issuance of the Letter of Guidance in 2005. The 2000 Final Order, however, did not find that Respondent violated the law. Although Respondent paid a fine and agreed to other disciplinary action, it was pursuant to a settlement agreement wherein no admission or determination of a violation of

    Chapter 471, Florida Statutes, was made. No matter how certain Petitioner might be that a violation occurred, the 2000 Final Order did not establish its occurrence.

28. With regard to the aggravating factor of the issuance of the Letter of Guidance, that letter was issued for events that occurred after the violations of the 2000 Final Order that are the subject of this case. Furthermore, like the 2000 Final Order, the Letter of Guidance did not establish that Respondent violated Chapter 471, Florida Statutes. Finally, even if the Letter of Guidance were a legitimate aggravating factor, it is offset by a mitigating factor; Respondent's use of the disclaimer statement was a step taken to ensure the non- occurrence of future, prohibited practices of electrical engineering.

29. The parties did not present evidence demonstrating the applicability of the other aggravating or mitigating factors cited above.

30. Petitioner urges a penalty be imposed against Respondent of license revocation and a fine of $15,000. Considering all the circumstances, that penalty would be unreasonably harsh. License suspension for one month and a fine of $1,000, for each of the four electrical inspections made in violation of the 2000 Final Order, would be fair and reasonable.

RECOMMENDATION

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

RECOMMENDED that the Board enter a Final Order finding that Respondent violated Subsection 471.031(1)(k), Florida Statutes, for violating an order of the Board previously entered in a disciplinary proceeding, and imposing a penalty of license suspension for a period of four months and a fine of $4,000, plus the costs of these proceedings, as determined by the Board.

DONE AND ENTERED this 9th day of June, 2006, in Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 June, 2006.

ENDNOTES

1/ References to the Florida Statutes are to the 2004 codification unless otherwise indicated.

2/ The "rough-in" inspection refers to the inspection made before the walls are installed, when the electrical components that will be inside the walls are still visible.

COPIES FURNISHED:

James W. Linn, Esquire Glenn E. Thomas, Esquire

Lewis, Longman & Walker, P.A.

125 South Gadsden Street, Suite 300 Post Office Box 10788

Tallahassee, Florida 32302

Bruce Campbell, Esquire

Florida Engineers Management Corporation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Paul J. Martin, Executive Director Board of Professional Engineers 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

Doug Sunshine, Esquire

Vice President for Legal Affairs

Florida Engineers Management Corporation 2507 Callaway Road

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: 05-004274PL

Orders for Case No: 05-004274PL