00-002616 Florida Engineers Management Corporation vs. Harold R. Tussler, P.E. Status: Closed Recommended Order on Friday, March 2, 2001.

Summary: Evidence failed to prove that engineer should be disciplined either for negligence in the practice of engineering or for improper delegation of engineering responsibility, as charged in Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 00-2616

)

HAROLD R. TUSSLER, P.E., )

)

Respondent. )

)

RECOMMENDED ORDER

The parties having been provided proper notice,

Administrative Law Judge John G. Van Laningham of the Division

of Administrative Hearings convened a formal hearing of this

matter that began on January 10, 2001, in Fort Lauderdale,

Florida, and was continued to, and completed on, January 12,

2001, by telephone conference call.

APPEARANCES

For Petitioner: Douglas Sunshine, Esquire

Florida Engineers Management Corporation

1208 Hays Street

Tallahassee, Florida 32301

For Respondent: Harold R. Tussler, P.E., pro se

1710 Avenida Del Sol

Boca Raton, Florida 33432

STATEMENT OF THE ISSUE

Whether Respondent Harold R. Tussler, P.E., should be

disciplined for negligence in the practice of engineering and

for improper delegation of engineering responsibility as alleged

specifically in the Administrative Complaint against him dated

May 26, 2000.

PRELIMINARY STATEMENT

On May 26, 2000, Petitioner Florida Engineers Man agement

Corporation (the "Corporation"), on behalf of the Florida Board

of Professional Engineers, issued an Administrative Complaint

against Respondent Harold R. Tussler, P.E. ("Tussler"), charging

him with two counts of negligence in the practice of engineering

and one count of improper delegation of engineering

responsibility. Tussler timely requested a formal hearing, and

on June 27, 2000, the Corporation referred the matter to the

Division of Administrative Hearings for assignment to an

administrative law judge.

The final hearing began as scheduled on January 10, 2001.

Due to time constraints, and with the agreement of all parties,

the proceeding was continued to, and completed by telephone

conference call on, January 12, 2001. During its case, the

Corporation called one witness, Carlos Garcia, P.E., who was

accepted as an expert on the subject of fire protection

engineering. Additionally, the Corporation introduced two

exhibits into evidence. In his defense, Tussler himself took

the stand, and he presented three non-party witnesses: Robert

Formica, P.E., who was accepted as an expert in the area of fire

protection engineering; and Messrs. David Loupe and David

Brockman, employees of a fire alarm company called EST Service.

Tussler also offered four exhibits, which were received in

evidence.

The parties were afforded the opportunity to submit

exhibits after the hearing's conclusion, and each did so. The

following late-filed Respondent's exhibits were admitted in

evidence: a revised Delray Lincoln Mercury plan dated

August 18, 2000 (Respondent's Exhibit 5); certified copies of

City of Delray Beach public records, namely, an Application

Tracking Action Log, Fire Alarm System Description, and Report

of Completion (Respondent's Composite Exhibit 6); and a copy of

National Fire Prevention Association ("NFPA") 72, Paragraph 3-

8.1.2 (Respondent's Exhibit 7), of which official recognition

was taken. At the Corporation's request, official recognition

was taken as well of NFPA 101, Paragraph 7-6.2.3; NFPA 72,

Paragraph 6-3.4; ASME 1 Article A17.1, Rule 211.3; Rule 4A-47.010,

Florida Administrative Code; and NFPA 101, Paragraph 7-6.3.4

(Petitioner's Exhibits 3-7, respectively).

Each party filed a post-hearing submission, and the

administrative law judge carefully considered these papers in

the preparation of this Recommended Order.

FINDINGS OF FACT

The evidence presented at final hearing established the

facts that follow.

1. Tussler is a Florida-licensed mechanical engineer. His

license number is FL19315.

2. The Corporation is a Florida non-profit corporation

organized to provide administrative, investigative, and

prosecutorial services to the Florida Board of Professional

Engineers (the "Board"). The Board is charged with regulating

the practice of engineering.

3. As engineer of record, Tussler signed and sealed plans

for fire protection systems in two separate projects, namely,

the Delray Lincoln Mercury project and the Townhouses of

Highland Beach project.

The Delray Lincoln Mercury Project

4. In m id-1999, ADT Security Services, Inc. ("ADT")

retained Tussler or his company, Design 4Engineering Inc., to

prepare a fire alarm plan for the Delray Lincoln Mercury

building located at 2102 South Federal Highway, Delray Beach,

Florida. The building is a two-story commercial structure in

which is located, over the second floor, a bi-level storage

facility constructed of steel racks and catwalks.

5. Tussler "roughed out" drawings for the plan and

assigned the task of drafting it to a computer aided design

("CAD") operator, whom he supervised, directed, or controlled.

According to Tussler, Tussler's expert witness, and the

Corporation's expert witness, this is a standard and accepted

practice in the engineering profession.

6. Similarly, Tussler relied on ADT personnel to select

the particular models of the various devices comprising the fire

alarm system. All of the experts agreed that this is a standard

and accepted practice in the engineering profession.

7. Tussler signed and sealed the Delray Lin coln Mercury

fire alarm plan on August 5, 1999.

8. On August 9, 1999, to obtain the necessary permits, ADT

submitted the plan to the local government having jurisdiction

over the project, which was the City of Delray Beach (the

"City").

9. The City's Fire Department disapproved the plan as

originally submitted and required that several changes be made.

10. The plan was revised in accordance with the Fire

Department's instructions. None of the modifications is

material to this case.

11. Tussle r signed and sealed the revised plan on

August 18, 1999; it was thereafter submitted to the City; and

the Fire Department approved the revised plan on August 27,

1999.

12. Because the plan that Tussler signed and sealed was

prepared under his responsible supervision, direction, or

control, he did not violate Section 471.033(1)(j), Florida

Statutes.

13. As designed and approved, the fire alarm system has

one "pull station" on the first floor that allows an individual

to initiate the alarm manually. Although this pull station is

not situated near an exit, the building's sprinkler system will

initiate the fire alarm automatically.

14. By virtue of the automatic sprinkler system, the fire

alarm plan that Tussler designed complies with the applicable

codes and standards governing signal initiation.

15. Accordingly, Tussler did not commit negligence in the

practice of engineering in connection with the Delray Lincoln

Mercury project.

The Townhouses of Highland Beach

16. In or around September 1999, the management company of

a residential complex known as The Townhouses of Highland Beach

Condominium, acting on behalf of the condominium owners, engaged

a firm called EST Service ("EST") to install a new control panel

in the fire alarm system serving one of the condominium's

buildings.

17. As EST learned, the condominium's existing fire alarm

system had been in place for some time. The control panel

recently had been damaged beyond repair, however, during routine

servicing of the device by a contractor other than EST.

18. The condominium owners made clear to EST their desire

that the scope of the project be limited to replacement of the

inoperative control panel. The owners hoped that the local

government — the City of Delray Beach — would deem the planned

panel "switch-out" a mere repair that could be accomplished

under the "grandfather" principle without triggering an

obligation to upgrade the system into compliance with current

codes and standards, which would increase the project's cost

substantially.

19. The condominium owners' hope was not wholly without

foundation in fact. Some municipalities do not require code

upgrades when the only change being made to a fire alarm system

is the replacement of a control panel. The Corporation's expert

witness conceded that the replacement of one defective piece of

equipment in an existing system does not necessarily entail the

obligation to upgrade the entire system to meet current codes.

20. Accepting this limited assignment, EST obtained from

its customer a plan that showed the layout of the devices

forming the condominium's existing fire alarm system. EST then

retained Tussler (or his firm) to prepare an engineering plan

depicting the existing system. EST explained to Tussler that

its contract with the condominium owners called for a panel

replacement only — not a full system upgrade.

21. Tussler and EST informed the condominium owners that,

in their opinion, the City's Fire Department almost certainly

would reject a plan that provided for no improvements besides a

panel replacement. The condominium owners continued to believe,

however, that a relatively inexpensive panel replacement might

satisfy the local authorities; they remained unwilling to pay

for a system design incorporating code upgrades.

22. Accordingly, EST personnel drew up an engineering plan

that satisfied the customer's demand, and Tussler signed and

sealed it on December 7, 1999. 2 Tussler knew, when he affixed

his seal, that the document described a system which did not

comply with current codes and standards.

23. Although Tussler and EST expected that the plan,

without more, would be disapproved, they nevertheless hoped that

the Fire Department might be willing presently to permit the

panel replacement on the condition that additional code upgrades

be performed in the future.

24. The engineering plan that Tussler signed and sealed

did not contain an explanation of the intended purposes for

which it had been prepared; it did not note any elements for

which Tussler disclaimed responsibility; nor did it identify any

assumptions made or facts relied upon in developing the

document. Tussler likewise failed to set forth, in the plan,

any reasons for deviating from applicable codes and standards.

Significantly, however, the Board did not charge Tussler with

negligent failure to follow the Responsibility Rules that

apparently require these or similar explanatory or revelatory

notes.

25. EST submitted the plan to the City's Fire Department,

and it was rejected. The Fire Department notified EST that it

would approve the plan only if the system's audible appliances

(horns) complied with the current sound level requirements for

signaling sleeping areas. See NFPA 72, Paragraph 6-3.4.

26. Testing revealed that the old horns were not loud

enough to meet the standard, but the condominium owners balked

at the expense of adding new ones. Eventually EST and the

condominium owners parted ways without any devices having been

installed pursuant to the plan that Tussler signed and sealed on

December 7, 1999.

27. Tussler's plan failed to comply with the following

codes and standards, for the reasons noted: 3

Code or Standard Plan Deficiency

Rule 61G15-33.006,

Florida Administrative Code No indication of either:

(a) conductor types and

installation requirements

(including rating

identification and listing

requirements); or (b) system

riser diagram

ASME Article A17.1,

Rule 211.3a(4)(a) Failure to provide for

automatic emergency elevator

recall to designated level

Rule 4A-47.010(1),

Florida Administrative Code Failure to provide for

automatic interruption of

power to elevator prior to

application of sprinkler

water

NFPA 72, Paragraph 7-6.3.4 Failure to provide for visual

signals

NFPA 72, Paragraph 6-3.4 Failure to satisfy sound

level requirements for

signaling sleeping areas

28. At hearing, Tussler agreed that his plan deviated from

the above-mentioned codes and standards. He also acknowledged

that if he had designed a new fire alarm system, then his plan

would have needed to comply with current codes, including those

he is alleged to have disregarded negligently.

29. Tussler explained, however, that the plan he issued

was neither intended nor required to comply with these current

codes and standards because he merely had diagramed a fire alarm

system that, regardless whether he drew it or not, existed in

fact. The uncontradicted evidence showed, moreover, that

Tussler and his client EST considered and intended the document

to be a "working tool" prepared for the limited purposes of

seeking the Fire Department's approval to replace an inoperative

control panel and, failing that, of persuading the condominium

owners to authorize a plan for code upgrades to the system. 4

30. The Corporation did not adduce any evi dence that

Tussler's issuance of the engineering document in question

breached a discernible standard of conduct under the specific

circumstances of the project . To the point, the Corporation

failed to show that a similarly-situated, reasonable engineer

would not have signed and sealed a plan, as Tussler did,

depicting an existing fire alarm system which is not in

compliance with current codes, for the purpose of seeking

approval from local authorities simply to replace a damaged

device without upgrading the whole system. 5

31. Consequently, the Corporation failed to carry its

burden to prove, by clear and convincing evidence, the specific

charge of negligence brought against Tussler arising from the

Townhouses of Highland Beach project.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

33. Section 471.033(1)(g), Florida Statutes, authorizes

the Board, on whose behalf the Corporation has prosecuted this

matter pursuant to Section 471.038(3), to discipline an engineer

proved guilty of negligence in the practice of engineering.

34. Rule 61G15-19.001(4), Florida Administrative Code,

defines the term "negligence," for the purposes of disciplinary

proceedings, to mean "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." The rule further explains:

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.

Id.

35. The Board also may punish an engineer for violating

Section 471.033(1)(j), Florida Statutes, which prohibits a

licensee from

[a]ffixing 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.

See also Rule 61G15-19.001(6)(j), Florida Administrative Code.

36. The foregoing statutory and rule provisions are penal

in nature and must be strictly construed, with ambiguities being

resolved in favor of the licensee. Lester v. Department of

Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

37. As the party asserting the affirmative of an issue,

the Corporation has the burden on proof. Department of

Transportation vs. J.W.C. Co. , 396 So. 2d 778, 790 (Fla. 1st DCA

1981).

38. For the Board to suspend or revoke an engineer's

license, impose an administrative fine, issue a reprimand, or

mete out any other penalty provided in Section 471.033(3),

Florida Statutes, the Corporation must prove the charges by

clear and convincing evidence. Ferris v. Turlington , 510 So. 2d

292, 294 (Fla. 1987). Further, the grounds proven must be those

specifically alleged in the administrative complaint. See ,

e.g. , Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372

(Fla. 1st DCA 1996); Kinney v. Department of State , 501 So. 2d

129, 133 (Fla. 5th DCA 1987); Hunter v. Department of

Professional Regulation , 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

39. In Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983), the Court of Appeal, Fourth District, canvassed

the cases to develop a "workable definition of clear and

convincing evidence" and found that of necessity such a

definition would need to contain "both qualitative and

quantitative standards." The court held that

clear and convincing evidence requires 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 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.

Id. The Florida Supreme Court later adopted the fourth

district's description of the clear and convincing evidence

standard of proof. Inquiry Concerning a Judge No. 93-62 , 645

So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal

also has followed the Slomowitz test, adding the interpretive

comment that "[a]lthough this standard of proof may be met where

the evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler

Brothers, Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev .

denied , 599 So. 2d 1279 (1992)(citation omitted).

40. In the Administrative Complaint against Tussler, the

Corporation alleged, in Count One, that the plan for the Delray

Lincoln Mercury project failed to "specify pull stations in the

1st floor exit or the 2nd, 3rd, or 4th floor stair exit." The

Corporation contends that Tussler committed negligence in the

practice of engineering by signing and sealing this plan. In

Count Two, the Corporation alleged that the plan for the

Townhouses of Highland Beach project was plagued by a plethora

of deficiencies, described as follows:

a. The drawings fail to describe

installation or performance requirements.

b. [Tussler] has failed to indicate a

system riser diagram or conductor type or

installation requirements.

c. [Tussler] has failed to indicate any

model catalog numbers or performance

requirements in the drawing legend.

d. The legend on all three sheets has an

identical note stating that "Fire alarm

devices shall be compatible with existing

fire alarm panel." [Tussler] has failed to

provide for an upgrade to this panel

depending on the number of devices that are

being added.

e. There is no indication of the elevator

being recalled.

f. The plans indicate tamper switches for

a sprinkler system but fail to indicate that

the elevator power will be shut down if the

sprinklers are installed.

g. The center exit stair does not have

the required pull station.

h. No visual devices are indicated.

i. The system design as shown on the

plans does not indicate any means to provide

audible alarm inside the individual units to

attain 70dBA or 15 dBA above ambient noise.

The Corporation charges Tussler with negligence for signing and

sealing this plan. In the third and final count, the

Corporation accused Tussler of violating of Section

471.033(1)(j), Florida Statutes, based on the allegation that he

improperly had delegated engineering responsibility to ADT

personnel in connection with the Delray Lincoln Mercury project,

allowing them to choose "specific model numbers for the fire

alarm system and [add] the model numbers to the drawings."

41. Whether Tussler committed negligence in the practice

of engineering or other misconduct, as charged, is a question of

ultimate fact to be decided in the context of each alleged

violation. Pillsbury v. State Department of Health and

Rehabilitative Services , 744 So. 2d 1040, 1042 (Fla. 2d DCA

1999); Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA

1995).

42. As set forth in the Findings of Fact above, the trier

has determined as matter of ultimate fact that Tussler is not

guilty of the specific grounds for discipline of which he was

accused in the Administrative Complaint. Simply put, the

evidence that the Corporation presented was insufficient to

prove, clearly and convincingly, that Tussler had committed the

particular acts of negligence alleged, or that he had improperly

delegated engineering responsibility to ADT employees.

43. These factual findings, however, were necessarily

informed by the administrative law judge's application of the

law. A brief discussion of the pertinent legal principles,

therefore, will illuminate the dispositive findings of ultimate

fact.

Count One (Negligence)

44. Rule 61G15-32.008(2), Florida Administrative Code,

mandates that an engineer use "applicable NFPA standards, when

available, or alternative engineering sources and good

engineering practice when required," in designing a fire alarm

system. The same rule requires as well that the design comply

the provisions of Rule 61G-33.006. 6

45. The Corporation maintains that the alarm system which

Tussler designed for Delray Lincoln Mercury does not comply with

NFPA 101, National Life Safety Code , Paragraph 7-6.2.3. Tussler

takes the position that this paragraph is inapplicable. He is

correct.

46. These are the pertinent provisions of the Code :

7-6.2.1 Where required by other sections of

this Code, actuation of the protective

signaling and control system shall occur by

any or all of the following means of

initiation, but shall not be limited thereto

(a) Manual fire alarm initiation.

(b) Automatic detection.

(c) Extinguishing system operation.

* * *

7-6.2.3 A manual fire alarm station shall

be provided in the natural exit access path

near each required exit from an area unless

modified by another section of this Code .

* * *

7-6.2.5 For fire alarm systems utilizing

automatic fire detection or waterflow

detection devices, at least one manual fire

alarm station shall be provided to initiate

a fire alarm signal. This manual fire alarm

station shall be located where required by

the authority having jurisdiction.

(Emphasis added).

47. NFPA 101, Paragraph 7-6.2.3, prescribes both the

number ( = number of exits) and location (near each exit) of

manual fire alarm stations. It is, however, expressly

subordinate to other Code sections, in consequence of the

"unless modified" clause.

48. NFPA 101, Paragraph 7-6.2.5, plainly modifies

Paragraph 7-6.2.3 both as to the number (at least one) and

location (selected by local authorities) of required manual pull

stations. Thus, when it applies, Paragraph 7-6.2.5 takes

precedence over Paragraph 7-6.2.3. 7

49. Here, the undisputed evidence showed that the

sprinkler system which is an integral part of the Delray Lincoln

Mercury project constitutes an automatic fire detection or

waterflow detection device within contemplation of Paragraph 7-

6.2.5. Consequently, Paragraph 7-6.2.3 must defer to Paragraph

7-6.2.5.

50. The evidence showed further, unambiguously and without

conflict, that Tussler's design called for at least one pull

station, and that this pull station was placed at the location

required by the local authority having jurisdiction (as

manifested by the Fire Department's approval of the plan).

Therefore, the plan complied with Paragraph 7-6.2.5.

51. In sum, on this record no negligence on Tussler's part

in respect of the number and location of pull stations in the

Delray Lincoln Mercury building has been established clearly and

convincingly.

Count Two (Negligence)

52. Under Rule 61G-19.001(4), Florida Administrative Code,

an engineer's failure to comply with the Board's Responsibility

Rules constitutes a basis for discipline "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." Further,

the rule imposes an affirmative duty to approve and seal only

documents that conform to "acceptable engineering standards" and

protect the public from harm. Taken together, these

prescriptions make clear that the sealing of a plan which does

not follow the codes and standards incorporated in the

Responsibility Rules, without justification, is an act of

disciplinary negligence.

53. In this case, there is no dispute that Tussler issued

a plan which did not comply with a number of codes and standards

that the Responsibility Rules require be followed. See

Paragraph 27, supra . Hence, the real question here is not

whether the plan for the Townhouses of Highland Beach project

deviated from applicable codes and standards (clearly it did)

but rather whether the departures were justified under the

circumstances and by Tussler's sound professional judgment.

54. Whether a deviation was justified by the specific

circumstances of a project is a fact issue that must be decided

in accordance with general standards of professional conduct, as

established by expert testimony. See McDonald v. Department of

Professional Regulation, Board of Pilot Commissioners , 582 So.

2d 660, 670 (Fla. 1st DCA 1991)(Zehmer, J., concurring)(agency

must present expert testimony on required professional conduct

to sustain charge of negligent failure to exercise degree of

care reasonably expected of professional); Purvis v. Department

of Professional Regulation , 461 So. 2d 134, 136 (Fla. 1st DCA

1984).

55. At hearing, Tussler explained why, in his professional

judgment, the specific circumstances of the Townhouses of

Highland Beach project justified his decision to seal a document

that deviated from applicable codes and standards. See

Paragraph 29, supra . Tussler's position is plausible and finds

some support in the Responsibility Rules. For example, Rule

61G15-30.003, Florida Administrative Code, provides:

Engineering documents which are issued for

preliminary or conceptual use, shall clearly

note the intended purpose of such documents.

When elements of the project are shown on an

engineering document only for information or

clarification and the Engineer does not

intend to accept responsibility for the

elements, the engineer shall clearly note on

the documents the extent of his

responsibility.

(Emphasis added); see also Rule 61G15-32.003(4)("When applicable

codes and standards are not available or applicable, and said

documents are based on engineering judgment, which constitutes a

deviation from applicable codes and standards, any reasons and

assumptions made to develop the fire protection concept shall be

identified on the documents."); 8 Rule 61G15-30.004 (governing

preliminary engineering documents prepared for public agency

review and comment).

56. Moreover, the Corporation failed to present any

evidence in rebuttal of Tussler's explanatory testimony. Its

expert witness offered no opinion as to whether a reasonable

engineer, exercising the degree of care reasonably expected of a

professional under the specific circumstances of the Townhouses

of Highland Beach project, would have issued a plan that

deviated from applicable codes and standards in a manner similar

to Tussler's document. 9 Absent such proof, the trier is bereft

of an acceptable measure by which to judge Tussler's expressed

justification for having deviated from the applicable codes and

standards. As a result, there is no basis in the evidence of

record to second-guess him.

57. In stark contrast to his testimony regarding the

grounds for deviating from applicable fire alarm design

requirements, Tussler offered no persuasive explanation or

justification for his failure to identify, on the plan itself,

the intended purposes of the document and the reasons for its

non-compliance with codes and standards that ordinarily would

need to be satisfied. Not only do the Responsibility Rules seem

clearly to require these disclosures, but also the Corporation's

expert alluded to this responsibility. See Transcript at 46

("[Y]ou make a statement saying what the . . . intent of the

drawings are [ sic ].").

58. Tussler, however, was charged with negligent ( i.e.

unjustifiable) departures from codes and standards governing

fire alarm system design — not with negligent failure properly

to disclose adequate justification for acceptable departures

from such codes and standards. 10 These, clearly, are separate

and distinct negligent acts, the former being the more serious

of the two. Tussler cannot be disciplined on the latter ground,

having received no advance notice of it.

59. Based on the evidence presented, the trier of fact was

not able to form a firm belief or conviction that Tussler's

admitted departures from applicable codes and standards were not

justified both by the specific circumstances of the project in

question and his sound professional judgment. Thus, the offense

charged in Count Two was not established by clear and convincing

evidence.

Count Three

60. On the charge of improper delegation, the Corporation

produced no evidence that Tussler had failed to exercise

"responsible supervision, direction, or control" over the

preparation of the plan for the Delray Lincoln Mercury project.

To the contrary, the testimony of Tussler and his expert, as

well as that of the Corporation's expert, refuted the

accusation. Therefore, the alleged violation of Section

471.033(1)(j), Florida Statutes, was not established by clear

and convincing evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Board of Professional

Engineers enter a final order dismissing the Administrative

Complaint against Tussler in this matter.

DONE AND ENTERED this 2nd day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of March, 2001.

ENDNOTES

1 / ASME is an acronym for American Society of Mechanical

Engineers.

2 / The Corporation did not charge Tussler with improper

delegation of professional responsibility in connection with the

Townhouses of Highland Beach project.

3 / The Corporation's descriptions of the alleged deficiencies,

as set forth in the Administrative Complaint, are quoted

verbatim at Paragraph 40, infra . To the extent the allegations

differ from the findings in the text above, the evidence was

insufficient to sustain the allegations clearly and

convincingly.

4 / The two employees of EST who testified at hearing, David

Loupe and David Brockman, corroborated Tussler's testimony

concerning the purposes of the plan.

5 / Tussler's apparent non-compliance with Responsibility Rules

that seemingly require an engineer to disclose, on the face of

the plan document, the intended purposes of, or the

circumstances justifying, a project design that deviates from

applicable codes and standards constitutes a separate and

independent act of possible negligence for which the Corporation

inexplicably has not sought to discipline Tussler.

6 / Rule 61G-33.006, Florida Administrative Code, provides:

(1) Alarm systems are used to monitor and

alarm a fire or other emergency condition.

Items to be included in the design or

analysis of these systems are: structure

alarm requirements, location and audibility,

types of alarms and initiation devices,

notification requirements, installation

requirements, backup power requirements,

applicable regulatory requirements, and the

provisions of rule 61G15-32.007, F.A.C.

(2) Design documents for alarm systems

shall, at a minimum, indicate the following:

(a) System riser diagram

(b) Device types and locations

(c) Type of conductors and installation

requirements including rating identification

and listing requirements

(d) Notification requirements

(e) Backup power requirements

(f) Where applicable, backup power

sources and inter-ties to other

systems/components.

7 / In its proposed recommended order, at page 8, the Corporation

argues, without citation to authority, that the "exception"

provided for in Paragraph 7-6.2.5 "does not apply to [Paragraph]

7-6.2.3" but rather "applies to and modifies only [Paragraph] 7-

6.2.1." This contention is not persuasive. Paragraph 7-6.2.5

is in harmony with, and effects no modification of, Paragraph 7-

6.2.1, the latter being a general provision that is silent as to

the number and location of required devices. In contrast,

Paragraph 7-6.2.5 is clearly at odds with Paragraph 7-6.2.3,

requiring fewer pull stations (when there are two or more exits)

and delegating to local officials the discretion to dictate the

location thereof. The Corporation's argument fails to account

for these palpable features of the Code . Further, the

Corporation's position would compel the conclusion that

Paragraph 7-6.2.5 imposes an additional requirement on systems

incorporating automatic detection and signal initiation devices.

Nothing in the plain language of Paragraph 7-6.2.5 remotely

suggests such an anomalous result, however, and the "unless

modified" clause of Paragraph 7-6.2.3 renders it untenable.

8 / Rule 61G15-32.003(4), Florida Administrative Code, is so

poorly drafted as to be nearly nonsensical. A code or standard

cannot be both applicable and "not available or applicable," as

the rule illogically appears to require. Thus, the phrase "not

available or applicable" should be construed to describe a code

or standard that normally would apply but, for reasons

particular to a project, either cannot be, need not be, or

should not be followed. (In further support of this

construction, consider that an engineer has no reason to follow

an inapplicable code or standard, and presumably could not

follow an "unavailable" one even if he were so inclined. The

rule cannot reasonably be understood to require that engineers

identify inapplicable or unavailable codes and standards on

their documents.) Given a reasonable interpretation, the rule

confirms that an engineer, in the exercise of independent

engineering judgment, may deviate from applicable codes and

standards, provided he identifies the reasons for, and

assumptions made in, doing so on the document.

9 / Tellingly, the Corporation's entire argument in opposition to

Tussler's justification is this one-sentence ipse dixit :

"[Tussler's] explanation with regard to the Townhouses of

Highland Beach, that the plans were submitted knowing that they

would be rejected and would not meet Code does not excuse his

responsibility as a professional engineer to comply with the

laws and rules governing the design of alarm systems." Pet.

Prop. Rec. Order at 9.

10 / The Corporation did not argue either at hearing or in its

proposed recommended order that Tussler should be disciplined

for negligent non-disclosure. Rather, the Corporation insisted

that Tussler's justification was inadequate. See endnote 9.

Under the Corporation's theory, which simply presupposed lack of

justification, the undisputed fact that Tussler's plan deviated

from applicable codes and standards was sufficient without more

to establish the charge of negligence. See Pet. Prop. Rec.

Order at 9.

COPIES FURNISHED:

Natalie A. Lowe, Executive Director

Florida Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301

Douglas Sunshine, Esquire

Florida Engineers Management Corporation

1208 Hays Street

Tallahassee, Florida 32301

Harold R. Tussler

1710 Avenida Del Sol

Boca Raton, Florida 33432

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.