05-002049PL Florida Engineers Management Corporation vs. Lester M. Maples, P.E. Status: Closed Recommended Order on Thursday, October 13, 2005.

Summary: The Board failed to show that Respondent violated any of the alleged violations in Count I, and Respondent admitted he did not date preliminary plans at the time, but has changed that practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS )

MANAGEMENT CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 05-2049

)

LESTER M. MAPLES, P.E., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held on August 11, 2005,

in the above-styled case by Stephen F. Dean, assigned

Administrative Law Judge of the Division of Administrative

Hearings, in Panama City, Florida.

APPEARANCES

For Petitioner: Bruce A. Campbell, Esquire

Florida Engineers Management Corp.

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

For Respondent: Alvin L. Petters, Esquire

Peters and Scoon

25 East 8th Street

Panama City, Florida 32401

STATEMENT OF THE ISSUE

Did the Respondent violate the provisions of Chapter 471, Florida Statutes, as alleged in the Administrative Complaint?

PRELIMINARY STATEMENT

The Petitioner filed a two-count Administrative Complaint

against the Respondent on April 1, 2005, alleging that the

Respondent, a licensed professional engineer, violated Chapter

471, Florida Statutes, by negligence in practice of engineering

with regard to plans for the fire sprinkler system to be

installed in the gymnasium at Gulf Coast Community College, and

by failing to date said plans.

The Respondent requested a formal hearing, to consider

disputed factual allegations contained in the Administrative

Complaint, and raised laches and the statute of limitations as

affirmative defenses. The case was referred to the Division of

Administrative Hearings to conduct the formal hearing.

Prior to the hearing, the presiding Administrative Law

Judge (ALJ) determined that the proceedings were not barred by

laches or statute of limitations. At the hearing, the

Respondent filed a motion to dismiss for failure to comply with

Section 455.225(4), Florida Statutes, requiring a determination

of probable cause by the probable cause panel. The ALJ

presiding at the hearing denied the motion to dismiss, observing

that laches did not apply in administrative proceedings against

a board or agency, but that the Respondent was not precluded

from showing that the delay in prosecution prevented the

Respondent from presenting evidence due to loss, destruction or

unavailability of evidence or testimony. This was shown to be a

problem as evidence was presented. See Tx-p. 21.

The Petitioner called four witnesses: Lester Maples, the

Respondent; Gene Schmidt; Ken Caldwell; and Larry Simmons. The

Petitioner introduced into the record Petitioner's Exhibits 1

through 4. The Respondent called Chris Thomas and Richard

Lovejoy as witnesses, and testified in his own behalf. The

Respondent introduced Respondent's Exhibits 1 and 2 into the

record. The parties stipulated to the introduction of Joint

Exhibit 1, calculations which accompanied the original drawings

and were a part of the plans package.

Both parties filed Proposed Recommended Orders containing

their proposed findings of fact and their arguments on the law,

which were read and considered.

FINDINGS OF FACT

1. The Respondent is a licensed professional engineer.

2. The Respondent holds license number PE 10214.

3. The Respondent signed and sealed on or about

November 15, 2001, a set of plans for the water fire sprinkler

system for the new student gymnasium at Gulf Coast Community

College consisting of three pages, and a set of calculations

consisting of 14 pages for said sprinkler system. All

discussions herein of sprinkler systems and the statutes related

to such systems is limited to water-based systems.

4. The calculations are intended to show that the

performance of the sprinklers is sufficient in the area defined

by the National Fire Protection Association (NFPA) standards as

the hydraulically most demanding. The hydraulically most

demanding area is the 1500 square feet fartherest away and

highest from the "fire riser" or the source of water to feed to

the system.

5. The area defined as the hydraulically most demanding

was identified on the plans as being in the southwest corner of

the building, taking the top of the plan as pointing due north,

or that portion of the building on the bottom, left corner of

the building consisting of the women's showers and women's

toilets.

6. The calculations were generated by a computer based

upon data provided on the size, height, length, and diameter of

the pipes servicing the system and the number of sprinkler heads

required in the hydraulically most demanding area. These

calculations assume all the sprinkler heads in the hydraulically

most demanding area will be activated, but no other sprinkler

heads in the system will be activated.

7. The calculations, Joint Exhibit 1, contained an error

regarding the nodes and their length. See page 3 of Joint

Exhibit 1, Nodes 20 and 25 at the bottom of the page. The best

demonstrative evidence of the nature of the error is contained

in Petitioner's Exhibit 3 in the diagram marked Piping

Isometric. In sum, there should have been another node in the

calculation of 61 feet.

8. Testimony was received regarding the plans, their

modification and actual construction of the system. The best

presentation of the ultimate construction is represented in

Respondent's Exhibit 1, which clearly shows two service pipes

into the women's shower area. According to the uncontroverted

testimony of the contractor, the intent was always to have two

pipes servicing this area, one suspended under the other on the

same set of supports, each pipe servicing the same number of

heads in the area of the women's shower room. This was not

adequately shown in the original drawings, and a second drawing

clearly showing the two pipes was prepared to satisfy the

general contractor.

9. The calculations for the second pipe would be

essentially the same as the first pipe because they are the same

length and both have the same "load." There was testimony

regarding new calculations supporting the plans, R-1, these

calculations were introduced as R-2. They also show the

pressure was adequate.

10. The plans were approved by the State Fire Marshall's

Office, by the Department of Education, and the Petitioner's

expert witness opined that two pipes would supply sufficient

water to service the area.

11. Credible testimony was received that the quality and

performance standards for valves, alarm checks, and switches

were contained in the specifications provided to the bidders by

the general contractor. These were not necessary in the

Respondent's plan.

12. Credible testimony was received that the entire

project had one classification of hazard occupancy, as stated on

the calculations, Joint Exhibit 1. No credible evidence was

received that electrical or mechanical rooms have a different

hazard occupancy and should have been treated any differently.

13. The Board's witness testified that one of the design

approaches is hydraulic calculation, See Tx 75-75. It is clear

from the calculations, Joint Exhibit 1, that this was the method

used.

14. The installation of the backflow preventer was the

responsibility of the general contractor and not part of the

Respondent's responsibility. Further, pipes, valves, etc., were

contained in the general contractor's specifications. Lastly,

there is a four-inch check valve shown in the detail for the

fire riser, which is a four-inch pipe and is the responsibility

of the Respondent.

15. The source of water is city water, which is treated.

There would be no microbial corrosion concerns.

16. The first page of the plans marked Petitioner's

Exhibit 1, shows the fire riser as being located in the

northwest corner of the building. The second and third pages

show the fire riser as being located in the northeast corner of

the building. Testimony was received concerning the

modification of the plans to conform to the location of the fire

main. Except for computation of the hydraulically most

demanding area, location of the riser is not particularly

important. The location of the fire riser was in fact, on the

northeast corner, and this was the location used for calculation

of the hydraulically most demanding area. The "as built"

drawings, Petitioner's Exhibit 2, clearly show the riser in its

proper location. To the extent that page one fails to reflect

the same location as pages two and three, it is of no real

significance.

17. Under the contract for the sprinkler system, the

general contractor was responsible for providing water to the

fire riser and the sprinkler contractor was responsible for the

system from that point. In sum, the plans incorporated those

specifications given.

18. Section 633.021(18), Florida Statutes, defines the

"point of service" as the point at which the underground piping

for a sprinkler system using water as the extinguishing agent

becomes used exclusively for the sprinkler system. The statute

provides that the point of service is designated by the engineer

who sealed the plans for a system of more than 50 heads.

19. The Respondent was not responsible for designing or

presenting plans for the underground water service "mainward" of

the fire riser. The riser by definition is not underground

service. Therefore, the Respondent was not responsible for that

portion of the total system at which the point of service would

have been designated.

20. No evidence was presented to establish that the

definition of point of service creates a requirement for an

engineer designing sprinkler design to control the system design

to that point. No evidence was presented regarding the

practices of the profession when this factual situation arises.

No evidence was presented on the importance of the point of

service in terms of a sprinkler system, and no testimony was

offered regarding how an engineer would sign and seal plans that

were beyond the scope of the work he was engaged to do.

Special Findings Regarding the Various Sets of Plans

21. As stated above, there were several sets of plans

introduced at hearing. Petitioner's Exhibit 1 was identified as

the set of plans signed and sealed by the Respondent; however,

there was no evidence that these plans were used to build any

portion of the project. In fact, the testimony was to the

contrary, that these plans were expected to be modified and were

modified prior to construction.

22. Petitioner's Exhibit 2 was identified by Mr. Caldwell

as a set of plans which he "red lined" as "as built" drawings

after the construction was completed. He did not identify what

iteration of the original plans he used; however, inspection and

comparison show that they are virtually identical to the set,

Petitioner's Exhibit 1. Mr. Caldwell qualified his additions to

the plans to state that they reflected only what he could see

without removal of tiles or materials.

23. Respondent's Exhibit 1 was identified by Chris Thomas

as being plans that were amended to address the concerns of

Mr. Schmidt. These plans show two pipes where the original

plans showed one pipe servicing the women's shower room.

Because of the delay in prosecuting this case and the losses due

to storms these plans are received and accepted as definitive

because to do otherwise would raise due process issues the

Petitioner having been aware of the alleged problems since

before the plans were executed.

24. No evidence was received regarding the customary

practice in signing and sealing multiple versions of plans.

25. There was no evidence presented regarding amended

calculations in support of the drawings. In the absence of such

testimony, it is concluded that only one set of calculations

were prepared, and they were determined by the approving

authorities to be sufficient.

26. The Respondent admits that he did not date the

calculations or the plans.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter pursuant to

Sections 120.57 and 455.225, Florida Statutes.

28. The Board of Professional Engineers is authorized by

Section 471.033(1), Florida Statutes, to discipline licensed

professional engineers, and may revoke, suspend or otherwise

discipline them for violations of the statutes and rules

governing their professional conduct.

29. Count I of the Administrative Complaint alleges

specifically that:

a. The Point of Service is not accurately

identified;

b. The classification of hazard occupancy is

not identified for specific rooms;

c. The plans do not provide a design

approach for the rooms primarily housing

electrical or mechanical equipment;

d. The plans show two different locations

for the water main riser and a different

water pressure than that used for

calculations;

e. The plans and calculations do not

specifically identify the water supply nor

consider the potential for microbial induced

corrosion;

f. The detail on the plans of the backflow

preventer shows a six inch pipe, but the

submitted check valve manufacturer's

information uses a four inch pipe;

g. The plans and specifications lack quality

and performance specifications for gate

valves, alarm checks, trim switch, gong

switch and tamper switches.

30. The allegations contained in subparagraphs b, c, e, f,

and g, above, were not proven. See Finding of Facts 11, 12, 13,

14, and 15.

31. Considered in the light that the allegations of

subparagraph a, above, are alleged to be negligence in the

practice of professional engineering, they were not proven. See

Findings of Facts 18, 19, and 20. The facts did not identify in

the situation presented who would be responsible for identifying

the point of service, and clearly did not establish that this

was a substantive departure for standard engineering practice.

32. Considered in the light that the allegations of

subparagraph d, above, are alleged to be negligence in the

practice of professional engineering, they were not proven. See

Findings of Facts 16 and 17. The facts did not clearly

establish that this was a substantive departure for standard

engineering practice. The allegations of subparagraph d, above,

were not proven.

33. Regarding the allegations that the system as designed

would not provide sufficient service to the hydraulically most

demanding area, the facts reveal that the system as designed and

built provided sufficient service to the hydraulically most

demanding area. There was no question that the system was built

with two pipes serving the women's shower room, and the

Petitioner's expert opined that such service would meet the

requirements.

34. The allegations in Count I were not proven.

35. The Respondent admits that he did not date the plans

at the time he signed and sealed them. He explained that this

was because he viewed them as preliminary plans. He also

explained that he has changed his practice and now stamps

initial drawings as "Preliminary Drawings." This is a violation

of Florida Administrative Code Rule 61G15-23.002 and Section

471.033(1)(a), Florida Statutes. This is a technical violation,

the same one the Board found the Respondent guilty of violating

several years ago in preparing a set of contemporaneously drawn

plans. Since that time, the Respondent has altered his

procedures and practices to conform to the Board's rule.

36. In light of the previous prosecution with identical

results in DOAH Case Number 02-0128 and the willingness of the

Respondent to admit not having properly dating the plans, it

would serve no useful purpose to fine the Respondent for this

technical violation after forcing him to defend the other

charges.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED that the Board dismiss the complaint against

the Respondent.

DONE AND ENTERED this 13th day of October, 2005, in

Tallahassee, Leon County, Florida.

S

__

STEPHEN F. DEAN

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 13th day of October, 2005.

COPIES FURNISHED :

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Bruce A. Campbell, Esquire

Florida Engineers Management Corp.

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303

Alvin L. Petters, Esquire

Peters and Scoon

25 East 8th Street

Panama City, Florida 32401

Doug Sunshine, Esquire

V.P. for Legal Affairs

Florida Engineers Management Corp.

2507 Callaway Road

Tallahassee, Florida 32303-5267

Paul J. Martin, Executive Director

Florida Engineers Management Corp.

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.