02-004774PL Florida Engineers Management Corporation vs. Lester M. Maples, P.E. Status: Closed Recommended Order on Wednesday, July 2, 2003.

Summary: Evidence did not show negligence in engineering; dispute over how hydraulic reference points are to be labeled does not show negligence; the points correlated to points on fire protection drawing and drawing enables a person to understand construction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4774PL

)

LESTER M. MAPLES, P.E., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 24, 2003, before Diane Cleavinger, a designated

Administrative Law Judge of the Division of Administrative

Hearings in Panama City, Florida.

APPEARANCES

For Petitioner: Douglas Sunshine, Esquire

Florida Engineers

Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

For Respondent: Alvin L. Peters, Esquire

Peters & Scoon

25 East Eighth Street

Panama City, Florida 32401

STATEMENT OF THE ISSUE

Whether Respondent's professional engineers' license should

be disciplined.

PRELIMINARY STATEMENT

On October 22, 2002, an Administrative Co mplaint was filed

by Petitioner against Respondent, Lester M. Maples, P.E. The

complaint alleged that Respondent had engaged in negligence in

the practice of engineering by failing to employ appropriate

engineering standards in the design of fire protecti on plans for

McArthur Elementary School (McArthur Elementary) and Longleaf

Elementary School (Longleaf Elementary) in Pensacola, Florida.

Specifically, Petitioner alleged that Respondent's license

should be disciplined for violating Section 471.033(1)(g),

Florida Statutes, relating to negligence in the practice of

engineering, because the fire protection plans did not contain

sufficient detail and clarity as required by Rule 61G15 - 32.003,

Florida Administrative Code, and did not specify proper sealants

whe re pipes penetrated fire barriers and reflected pipes

penetrating walls at other than a 90 degree angle; and violating

Section 471.033(1)(a), Florida Statutes, relating to rule

violations by failing to date the plans as required by

Rule 61G15 - 23.002, Flori da Administrative Code. Respondent

denied the allegations of the Administrative Complaint and

requested a formal hearing on the charges.

At the hearing, Petitioner presented the testimony of three

witnesses and offered seven exhibits into evidence. Respo ndent

testified in his own behalf and offered the testimony of two

witnesses. Respondent also offered one exhibit into evidence.

After the hearing, Petitioner and Respondent filed P roposed

R ecommended O rders on May 16, 2003, and March 27, 2003,

respecti vely.

FINDINGS OF FACT

1. At all times material to the allegations of this case,

Respondent, Lester M. Maples, P.E., has been registered as a

licensed engineer in the State of Florida, holding license

number PE 10214. He has been licensed since 1964. Th ere was no

evidence that Respondent had been disciplined by the Florida

Board of Professional Engineers in the past.

2. Panhandle Fire Protection, Inc. (Panhandle) is owned by

Chris Thomas and is in the business of designing and

constructing fire protecti on systems. Respondent is the

engineer for Panhandle.

3. Respondent is the engineer of record for the fire

protection plans for Longleaf Elementary and McArthur Elementary

in Pensacola, Florida. Both plans were prepared in conjunction

with Panhandle, th e eventual contractor for the construction of

the fire protection systems at both schools. The fire

protection plans for both schools were signed, sealed, and dated

by Respondent, with some revision dates also listed. The date

does not appear immediately under Respondent's signature.

However, the technicality of placement of the date is at best a

de minimus violation which does not warrant discipline. Since

the plans are dated, the portion of the Administrative Complaint

alleging that Respondent failed to date the plans should be

dismissed.

4. Both plans were drawn by using data generated by a

generally recognized computer program used for designing fire

protection systems and generating the hydraulic calculations for

such a system. Both plans show a f airly detailed layout of the

fire protection piping and sprinkler heads at each school.

Lengths of pipe, as well as diameter are shown. By looking at

the plans, a person can generally trace the route of the pipes

planned for each school and determine eac h system's

construction. Both drawings are drawn to scale and otherwise

appear to meet rule and building code criteria for such

drawings. See Florida Building Code 104.2.1 and

Rule 61G15 - 32.003(1), Florida Administrative Code. Indeed, both

school's fire safety systems have been constructed and are in

place at each school.

5. However, prior to construction, Gene Schmidt, P.E., was

the engineer of record for the Escambia County School Board.

Fire protection systems is not his area of specialty. Whi le he

was not responsible for the fire safety plans for the two

schools, he performed a courtesy review of the fire protection

drawings and hydraulic calculations for Longleaf Elementary and

McArthur Elementary.

6. After review, Mr. Schmidt felt tha t the hydraulic

calculations could not be reconciled with the drawings. He felt

the plans did not comply with NFPA 13 with which fire protection

plans must comply in Florida. NFPA 13 6 - 1.1.1 only requires

that the hydraulic reference points or nodes show n on the plan

correspond or correlate with comparable reference points on the

hydraulic calculation sheets for the drawings. Hydraulic

reference points or nodes are any intersection of piping where

the flow of water through the pipes can change. Nowhere in

NFPA, rule or statute, is the manner for describing these

intersections or sections of pipe prescribed.

7. Mr. Schmidt had difficulty in identifying the node

points and section of pipe listed in the hydraulic calculations

on the drawings. Once the met hod of description used by

Respondent to describe these nodes and sections of pipe was

explained to Mr. Schmidt, he could identify the reference point

calculations on the drawings. Indeed, at the hearing,

Mr. Thomas, a contractor, and another independent witness with

expertise in engineering design principles, had no problem in

tracing through the hydraulic reference points on the drawings.

Both witnesses were of the opinion that the drawings contained

sufficient information and continuity so that a perso n could

trace through or determine how the water would flow throughout

the sprinkler system. On the other hand, Petitioner's expert

witness had great difficulty in so doing. He was of the opinion

that Respondent's drawings lacked continuity and a person could

not trace through or follow the flow of water through the system

because the hydraulic reference points were not all defined or

locatable on the drawings. What was clear from the evidence was

that these various experts had real disagreements over th e

terminology to be used for describing hydraulic reference points

and the theory underlying one method of description over

another. In any event, the evidence showed that Respondent's

descriptive methods were valid even if somewhat unique and that

the hy draulic reference points did correlate to the hydraulic

calculations for the two projects. As indicated, both systems

were built and accepted by the owner. Therefore, the portions

of the Administrative Complaint related to the lack of detail or

clarity i n the drawings and the relation of the hydraulic

reference points to the drawings should be dismissed.

8. The drawings do show pipes penetrating rated walls in

corridors and around the kitchen at angles other than at 90

degrees. However, there is nothing in any rule, building code,

or NFPA provision which prohibits such a design. Indeed,

Petitioner's expert, who decried the angled design, has designed

piping in such a manner. Additionally, the drawings do not

specify the type of sealant the contractor s hould use when a

pipe penetrates a firewall. However, there is no code or rule

requiring such a specification. Indeed, proper sealing of the

pipes in the area of penetration of a firewall, as is proper

sealing of windows and doors, is required by Section 104.2 of

the Florida Building Code. However, such standard building code

requirements are not required to be specified in the drawings

since all such construction requirements must be met by the

contractor and is not otherwise a special design detail to be

specified on the drawings by an engineer. Therefore, the

portions of the Administrative Complaint related to the

sprinkler systems' pipes entering the wall at an angle other

than 90 degrees and the failure of Respondent to specify the

type of sealant t o be used where pipes penetrate a firewall

should be dismissed.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57, Florida Statutes.

10. 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:

(a) Be a Florida corporation not for

profit, incorporated under the provisions of

chapter 617.

(b) Provide administrative, investigative,

and prosecutorial services to the board in

accordance with the provisions of chapter

455, this chapter, and the con tract required

by this section.

11. 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:

* * *

(a) Violating any provision of s.

455.227(1), s. 471.025, s. 471.031, or any

other provision of this chapter or rule of

the board or department.

* * *

(g) Engaging in fraud or deceit,

negligence, incompetence, or misconduct, in

the practice of eng ineering.

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

addresses "negligence" as follows:

(4) A professional engineer shall not be

negligent in the practice of engineering.

The term negligence set forth in

471.033(1)(g), Florida Statutes, i s 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 th ose

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 Engineer s 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.

13. Rule 61G15 - 23.002(1), Florida Administrative Code,

provides in pertinent part:

A professional engineer shall sign his name

and affix his seal to all plans,

specifications, . . . or other documents

prepared or issued by said registrant and

being filed for public reco rd. The date

that the signature and seal is affixed as

provided herein shall be entered on said

plans, . . . immediately under the signature

of the professional engineer.

14. Petitioner bears the burden of proof to establish by

clear and convincing evi dence the violations alleged in the

Administrative Complaint. Department of Banking and Finance v.

Osborne , 670 So. 2d 932 (Fla. 1996).

15. In this case, Petitioner has not established by clear

and convincing evidence that Respondent violated Chapte r 471,

Florida Statutes. Therefore, the Administrative Complaint

should be dismissed.

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.

DONE AND ENTERED this 2nd day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

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 2nd day of July, 2003.

COPIES FURNISHED :

Al vin L. Peters, Esquire

Peters & Scoon

25 East Eighth Street

Panama City, Florida 32401

Douglas Sunshine, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

Natalie A. Lowe, Executive Director

Flori da 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

1940 North M onroe 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 should be filed with the agency that

will issue the final order in this case.