5D06-2267 Kany v. Florida Engineers Management Corp.

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-2267

Case Date: 02/12/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2007

ROBERT C. KANY, P.E., Appellant, v. FLORIDA ENGINEERS MANAGEMENT CORPORATION, Appellee. ________________________________/ Opinion filed February 16, 2007 Administrative Appeal from the Board of Professional Engineers. Douglas W. Ackerman, and Daniel M. Greene, of Kirwin Norris, P.A., Winter Park, for Appellant. John J. Rimes, III, and Bruce A. Campbell, Tallahassee, for Appellee. Case No. 5D06-2267

GRIFFIN, J. Robert C. Kany, P.E. ["Kany"], appeals the Florida Board of Professional Engineers' ["Board"] order revoking his license to practice engineering. Revocation was grounded on a determination that Kany had violated section 471.033(1)(j), Florida Statutes, by affixing or permitting to be affixed his seal, name, or signature to final drawings that were not prepared by him or under his responsible supervision, direction,

or control1 and section 471.033(1)(a), Florida Statutes, by aiding and assisting an unlicensed person to practice engineering and for professional negligence. The operative facts were essentially undisputed. Robert Thomas ["Thomas"], a draftsman, operated a business pursuant to which he contracted with homeowners to draft plans to improve two existing residential properties, one located on 8245 Curry Ford Road and the other at 2008 Corena Drive. Both projects included some

engineering. Thomas is not a licensed engineer, however, so he brought the drawings he had prepared to Kany, a licensed professional engineer since 1940.2 Kany reviewed Thomas' drawings, made comments and corrections, and checked to make sure that the plans complied with code. He then signed and sealed the Curry Ford plans on about February 12, 2004, and signed and sealed the Corena Drive plans sometime between April 26, 2002 and July 8, 2003. This is the conduct that is the crux of this appeal. The Board contends that this conduct warrants revocation of his engineering license because the plans he sealed were not prepared under Kany's "responsible supervision, direction or control." This matter was heard by the Division of Administrative Hearings on January 13, 2006.
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Each side presented witnesses.

Based on the evidence presented at this

Section 471.033, Florida Statutes (2006), provides: Affixing or permitting to be affixed his or her seal, name, or digital signature to any final drawings, specifications, plans, reports, or documents that were not prepared by him or her or under his or her responsible supervision, direction, or control. . . .

(Emphasis added). The Board refers to this as "plan stamping." Kany first registered as a Professional Engineer in Indiana in 1940. He has been working as a Professional Engineer in Florida for about twenty-five years. 2
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hearing, the Administrative Law Judge ["ALJ"] issued a recommended order that included the following findings: 11. While one small deficiency exists to the structural design of Joint Exhibit 1, "Renovations to Existing Facilities 8245 Curry Ford Road, Orlando," there was no threat to public safety. 12. There are myriad structural engineering deficiencies in Joint Exhibit 2, "2008 Corena Drive," which are the sealed plans for the residence at that address. The deficiencies may be the result of the fact that the plans were incomplete due to the owners' failure to decide on a cathedral or closed ceiling. If the plans were preliminary, [Kany] should not have sealed them. 13. The plans depicted in Joint Exhibit 2, "2008 Corena Drive," do not meet minimum engineering standards; the engineer of record, Respondent, was negligent in sealing these plans. The ALJ concluded that the Florida Engineers Management Corporation ["FEMC"]3 had proven only count six of its complaint, which was that Kany had been negligent in sealing the Corena Drive plans. In rejecting the other counts, the ALJ wrote: 14. It is acceptable practice in the engineering community for an engineer to work with a designer who drafts design documents and is independently employed. It is also acceptable practice in the engineering community for an engineer working with a designing draftsman not to visit a particular project site if sufficient detail of the project is related to the engineer by the draftsman. 15. It is acceptable practice in the engineering community for a draftsman to design complete drawings and then present the drawings to an engineer for engineering review and approval as long as the draftsman is known to the engineer and the engineer is aware of the draftsman's skill and expertise.
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The FEMC provides administrative, investigative, and prosecutorial services to the Board of Professional Engineers. The Board of Professional Engineers regulates the practice of engineering in Florida. 3

16. Respondent has practiced his profession for 65 years, the last 25 in Florida. He has known Robert Thomas, the individual who drafted both sets of plans in question, for seven or eight years. Respondent considers Mr. Thomas to be a "darn good" draftsman with considerable knowledge of the building industry. When Mr. Thomas brings plans to Respondent for review, they discuss the project and the plans; Respondent then makes appropriate changes to assure that the plans comply with or exceed code. This process meets the "responsible charge" standard. *** 28. Petitioner has failed to prove by clear and convincing evidence the remaining counts of the Administrative Complaint. The evidence presented indicates that Respondent exercised "responsible charge" over Robert Thomas; although Mr. Thomas actually met with his clients and drafted the plans, Respondent had ultimate control over engineering decisions after discussion of the particular project and consideration of plan alternatives. Respondent was familiar with Mr. Thomas' qualifications. 29. There is no evidence that supports the allegation that Respondent aided or assisted Mr. Thomas in the unlicensed practice of engineering. Given the absence of aggravating circumstances, the ALJ recommended that Kany only receive a reprimand for his negligence on the Corena Drive project. In response to the proposed order, the parties filed their exceptions with the Florida Board of Professional Engineers. The FEMC asked the Board to accept five substantial exceptions to the ALJ's proposed order. The essential purpose of these exceptions was to undo the ALJ's findings in paragraphs 16 and 28 that Kany exercised "responsible charge" over the work of Robert Thomas. The Florida Board of Engineers met to discuss the proposed order and exceptions, accepted the five exceptions requested by the FEMC, and made the

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decision to permanently revoke Kany's license. All other findings of fact and conclusions of law included in the recommended order were incorporated into the final order. The decisions taken at this meeting were reflected in the final order issued by the Board on June 26, 2006. At the administrative hearing, several witnesses testified as to the proper relationship between a draftsman and the engineer of record. Syed Ashraf, a

professional engineer called by FEMC to give expert testimony, agreed that the engineer of record does not need to do structural calculations or drawings and, while the engineer has to directly supervise the work of a draftsman, it is not necessary for the draftsman to be employed by the engineer's company. In his opinion, however, the engineer has to make all design decisions from the beginning . Professional Engineer Darius Adams ["Adams"] agreed that the employment relationship between the drafter and the engineer is irrelevant; rather, what matters is whether the engineer is familiar with the work of the drafter and can trust the drafter's work. When asked about whether an engineer's ratification of plans drawn by a nonengineer could constitute "responsible charge," Adams said: Plans have to be presented in some form. At that point that's when the engineer of record

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