05-004270PL Florida Engineers Management Corporation vs. Lester M. Maples, P.E. Status: Closed Recommended Order on Friday, March 31, 2006.

Summary: Respondent drew fire protection plans while working for a corporation that was required to have a certificate of authorization, but did not have one.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4270PL

)

LESTER M. MAPLES, P.E., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administr ative Hearings, on February 13 , 2006, in Panama City,

Florida.

APPEARANCES

For Petitioner: Bruce A. Campbell, Esquire

Flo rida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

For Respondent: Alvin L. Peters, Esquire

Peters & Scoon

25 East 8th Street

Panama City, Florida 32401

STATEMENT OF THE ISSUE S

The issue s are whether Respondent violated Section

471.033(1)(g), Florida Statutes (2003), by negligence in the

practice of engineering, and whether Respondent v iolated

Sections 471.023 and 471.033(1)(a), Florida Statutes (200 3 ), by

practicing engi neering through a business organization that d id

not , nor does it currently have, a C ertificate of A uthorization.

PRELIMINARY STATEMENT

In an Administrative Complaint filed October 28, 2005,

Respondent Lester M. Maples (Mr. Maples) , a professional

enginee r , was charged by the Florida Engineers Management

Corporation (FEMC) , before the Board of Professional Engineers

(Board) , with violating certain sections of Chapter 471, Florida

Statutes. Mr. Maples filed an Election of Rights with the Board

on November 16, 2005, demanding a formal hearing. In a response

filed with the Board on November 21, 2005, Mr. Maples denied all

of the allegations .

The matter was filed with the Division of Administrative

Hearings on November 21, 2005. It was set for final hearing on

February 13 and 14, 2006 . The hearing was completed by the end

of the day on February 13, 2006.

At the hearing, FEMC presented the testimony of the

Mr. Maples and Edward J. Spahn, who is an expert in fire

protection engineering . The FEMC offered Peti tioner's Exhibit

Nos. 1 - 5 and 5a into evidence , and they were admitted.

Petitioner's Exhibit No. 1 was asserted to be a fire protection

plan for the Treasure Island Condominiums dated January 27,

2004. Petitioner's Exhibit No. 5 is a fire protection plan for

the Treasure Island Condominiums that was submitted to the Bay

County Building Official on January 19, 2005. The plan has a

typed date of January 16, 2004 , and a hand - written date of

June 30, 2004 . U ndecipherable initials appear by the hand

written date. It is the plan that was submitted to the Bay

County Building Official for purposes of permitting.

Mr. Maples presented the testimony of Chris Thomas and

Richard Lovejoy, an expert in fire protection engineering.

Mr. Maples also testified o n his o wn behalf. Mr. Maples offered

Respondent's E xhibit Nos. 1 and 2 into evi dence , and they were

admitted. Respondent ' s Exhibit No. 1 is a fire protection plan

for the Treasure Island Condominiums dated June 8, 2004 ; it is

signed by Mr. Maples, and has the w ords "job site" stamped upon

it . Respondent ' s Exhibit No. 2 is a fire protection plan for

the Treasure Island Condominiums that is also dated June 8,

2004 , and is also signed by Mr. Maples . It is essentially

identical to Respondent ’ s Exhibit No. 1 , excep t that it does not

have the words "job site" stamped upon it.

A Transcript was filed on March 6, 2006. After the

hearing, Petitioner and Respondent filed their Proposed Findings

of Fact and Conclusions of Law on March 14, and 16, 2006,

respectively .

Ref erences to statutes are to Florida Statutes (200 3)

unless otherwise noted.

FINDINGS OF FACT

1. Mr. Maples is a licensed professional engineer in the

State of Florida. He holds license no. PE 10214 , and he

practices engineering in the Panama City, Flor ida, area. During

all times pertinent Mr. Maples held an active license and

practiced pursuant to it.

2. FEMC is charged with providing administrative,

investigative, and prosecutorial services to the Board of

Professional Engineers pursuant to Section 471.038, Florida

Statutes.

3. The Board of Professional Engineers exists pursuant to

Section 471.007 and is authorized to discipline engineers under

its authority by Section 455.225.

4. During times pertinent , Mr. Maples provided engineering

drawings t o Chris Thomas (Mr. Thomas) , who own ed Panhandle Fire

Protection, Inc. (Panhandle) of Lynn Haven, Florida . Mr. Maples

maintained his engineering supplies in Mr. Thomas's office .

Mr. Maples did most of his engineering work in his home in Lynn

Haven, Flor ida. During times pertinent, Panhandle was his only

client.

Count One

5 . At a time prior to January 27, 2004, Panhandle entered

into an agreement with Bill Grimsley (Mr. Grimsley or Owner) .

Mr. Grimsley was building a 22 - story building in Panama City

B each, Florida, which was to be named Treasure Island

Condominium s (the Condominium s ). The agreement contemplated

that Panhandle would address the f ire suppression needs of the

Condominium s .

6. In order to address the fire suppression needs of the

Condom inium s a fire protection plan using water sprinklers was

required. The fire protection plan that was ultimately

developed and submitted for permitting, FEMC's Exhibit No. 5,

provided for the installation of more than 49 sprinklers.

Although it is difficu lt to determine exactly how many

sprinklers were to be utilized, the number was in excess of

1000.

7 . The Condominium s included residential area s and garage

area s . The residential area s were to be provided with a "wet"

sprinkler system and the garage ar ea s were to be provided with a

"dry" sprinkler system. A "wet" system employs pipes which

always have water in them. A "dry" system has no water until it

is activated during a fire. A "dry" system is used where

freezing might be a hazard. Thus the gara ge, which was not

designed to be heated, had a dry system.

8 . Mr. Thomas drafted a sprinkler system for the

Condominium s using shop drawings of the Condominium s provided to

him by the O wner . Mr. Maples reviewed and corrected

Mr. Thomas's work. Thereaf ter, he sealed the drawings that were

FEMC's Exhibit No. 1 on January 27, 2004. Mr. Maples did not

intend for these drawings to be the complete and final drawings

for this project. They were for the use of the Owner. These

drawings formed the basis of F EMC's complaint of negligence in

the practice of engineering with regard to Mr. Maples .

9 . Mr. Thomas , or his employees, made certain

calculations , based on the drawings which set forth the

schematic of the sprinkler systems . Drawings are the source

doc uments for calculations. The calculations provide

information about the system, including pipe diameter and

length , and water pressures at various points. FEMC's Exhibit

No. 2 are calculations which were signed by Mr. Maples, but were

no t seal ed by him . These calculations are dated May 21, 2004.

10 . The calculations that are FEMC's Exhibit No. 2 are in

two parts. One part addresses the wet system for the

residential areas and the other part addresses the dry system

for the garage areas.

1 1 . It was n ot proved by clear and convincing evidence

that t he calculations that are FEMC's Exhibit No. 2 correspond

to FEMC's Exhibit No. 1 , although they were clearly prepared for

some iteration of the fire protection plan for the Condominium s .

The probability is high that FEMC's Exhibit No. 2 was prepared

for a n iteration of drawings prepared subsequent to FEMC's

Exhibit No. 1 . For instance, Petitioner's Exhibit No. 1

reflects a six - inch pipe under a walkway leading to a standpipe

on the first page. On Petitione r's Exhibit No. 5, a later

iteration of the plans, the pipe is shown as a four - inch pipe ,

and Petitioner's Exhibit No. 2 shows calculations for a four -

inch pipe.

12 . The absence of calculations that are specific to the

operative plans, FEMC 's Exhibit No . 1, means that there is no

record adequate for finding facts to support Count One .

1 3 . FEMC's Exhibit No. 1 was never submitted to the

authority having jurisdiction , the Bay County Building Official .

FEMC's Exhibit No. 1 was not prepared with the int ent that it

was to be submitted to the authority having jurisdiction.

1 4 . FEMC did not prove by clear and convincing evidence

that FEMC's Exhibit No. 1 was a fire protection system

engineering document as defined in Florida Administrative Code

Chapter 6 1G15 - 32. This fact was admitted in FEMC's Proposed

Recommended Order.

1 5 . Accordingly, b ecause the allegations of negligence in

the Administrative Complaint are limited to violations of

Florida Administrative Code Chapter 61G15 - 32 , addressing fire

prote ction system engineering documents , the s pecific

alle gations of Count One suggesting Mr. Maples failed to comply

with Florida Administrative Code Rule 61G15 - 32.003 and National

Fire Protection Association 13 (NFPA 13 ) , and the s pecific

allegations suggest ing Mr. Maples failed to comply with Florida

Administrative Code Rule 61G15 - 32.004 , were not proven .

Count Two

1 6 . Count Two of the Administrative Complaint alleges at

paragraph 11, that "the fire protection documents prepared for

the Treasure Island Co ndominium contain a title block for

Panhandle Fire Protection, with a designer, Chris Thomas.

Respondent signed and sealed the documents but no title block

reflects a separate address for him." As noted above, the

document dated January 27, 2004, to whic h the quoted paragraph

refers, is admittedly not a fire protection engineering

document .

1 7 . Count Two of the Administrative Complaint further

alleges at paragraph 12, that, "Respondent signed a letter on

the stationery of Panhandle Fire Protection, Inc. , dated July 7,

2004, listing his capacity as 'Engineer,' in response to the

notice of investigation of a complaint about the Treasure Island

Condominium." This letter was a mere inquiry to the Florida

Board of Professional Engineers and correctly noted t hat the

complaint was based on an owner review set of plans rather than

the permitted ones. The signers of the letter , Mr. Maples and

Mr. Thomas, were both concerned about the allegations that had

been made against them. This letter provides , at most, a

scintilla of evidence that Mr. Maples was practicing engineering

through a business entity that does not have a C ertificate of

A uthorization.

18 . Panhandle has not been issued a Certificate of

Authorization by the Board.

19 . Mr. Thomas does not use an y title that refers to

himself as an engineer, including any title described by Section

471.031. He is a self - taught "sprinkler man," who has been in

the business for 25 years.

20. The license held by Mr. Thomas , "Contractor II," was

issued pursuant to Section 633.021 , and permits him to design

fire protection systems using 49 or fewer sprinkler heads .

21. Panhandle was engaged in the business of desi gning, as

well as building the sprinkler system for the Condominiums , and

the design had many more th an 49 heads . Panhandle was

practicing engineering as defined by Section 471.005(7).

Specifically, Panhandle was practicing fire protection

engineering.

22. Mr. Maples was not an employee of Panhandle. Rather,

he was paid for each individual job that he did for Panhandle.

Mr. Maples has worked for Mr. Thomas for several years and has

participated in the production of over one hundred sets of fire

protection plans. Mr. Maples was practicing engineering thr ough

a corporation that had no C ertificate of A u thorization.

CONCLUSIONS OF LAW

2 3 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat . (2005) .

2 4 . Section 471.033(1)(a) authorizes the Board, on whose

behal f 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 , which is specifically

addressed in Section 471.033(1)(g) . As noted above, no evidence

was ad duced which would permit a finding of guilty of violating

Section 471.033(1)(g) .

2 5 . Section 471.033( 1 ) (a) , 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

violating Section 471.023.

2 6 . The charge in this case is 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 92 3, 925 (Fla. 1st DCA

1977) and Elmariah v . Department of Professional Regulation , 574

So. 2d 164 (Fla. 1st DCA 1990).

2 7 . As the party asserting the affirmative of an issue,

the Corporation has the burden o f proof. Department of

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

1981).

28 . The grounds proven must be those specifically alleged

in the Administrative Complaint. See Cottrill v. Department of

Insurance , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1987).

29 . Section 471.023, provides:

§ 471.023. Certification of business

organizations .

(1) The practice of, or the offer to

practice, engineering by licensees or

offering engineering services to the public

through a business organization, including a

partnership, corporation, business tr ust, or

other legal entity or by a business

organization, including a corporation,

partnership, business trust, or other legal

entity offering such services to the public

through licensees under this chapter as

agents, employees, officers, or partners is

p ermitted only if the business organization

possesses a certification issued by the

management corporation pursuant to

qualification by the board, subject to the

provisions of this chapter. One or more of

the principal officers of the business

organization or one or more partners of the

partnership and all personnel of the

business organization who act in its behalf

as engineers in this state shall be licensed

as provided by this chapter. All final

drawings, specifications, plans, reports, or

documents inv olving practices licensed under

this chapter which are prepared or approved

for the use of the business organization or

for public record within the state shall be

dated and shall bear the signature and seal

of the licensee who prepared or approved

them. Nothing in this section shall be

construed to mean that a license to practice

engineering shall be held by a business

organization. Nothing herein prohibits

business organizations from joining together

to offer engineering services to the public,

if each business organization otherwise

meets the requirements of this section. No

business organization shall be relieved of

responsibility for the conduct or acts of

its agents, employees, or officers by reason

of its compliance with this section, nor

shall any individual practicing engineering

be relieved of responsibility for

professional services performed by reason of

his or her employment or relationship with a

business organization.

30 . Section 633.021 provides, in part, as follows:

§ 633.021. Definiti ons

As used in this chapter:

* * *

(4) "Contracting" means engaging in

business as a contractor.

(5)(a) " Contractor I" means a contractor

whose business includes the execution of

contracts requiring the ability to lay out,

fabricate, install, inspect , alter, repair,

and service all types of fire protection

systems, excluding preengineered systems.

(b) " Contractor II" means a contractor

whose business is limited to the execution

of contracts requiring the ability to lay

out, fabricate, install, inspe ct, alter,

repair, and service water sprinkler systems,

water spray systems, foam - water sprinkler

systems, foam - water spray systems,

standpipes, combination standpipes and

sprinkler risers, all piping that is an

integral part of the system beginning at the

point of service as defined in this section,

sprinkler tank heaters, air lines, thermal

systems used in connection with sprinklers,

and tanks and pumps connected thereto,

excluding preengineered systems.

* * *

The definitions in this subsection must not

be construed to include fire protection

engineers or architects and do not limit or

prohibit a licensed fire protection engineer

or architect from designing any type of fire

protection system. A distinction is made

between system design concepts prepared by

the design professional and system layout as

defined in this section and typically

prepared by the contractor . However,

persons certified as a Contractor I,

Contractor II, or Contractor IV under this

chapter may design fire protection systems

of 49 or fewer sprinklers, and may design

the alteration of an existing fire sprinkler

system if the alteration consists of the

relocation, addition, or deletion of not

more than 49 sprinklers, notwithstanding the

size of the existing fire sprinkler system.

A Cont ractor I, Contractor II, or Contractor

IV may design a fire protection system the

scope of which complies with NFPA 13D,

Standard for the Installation of Sprinkler

Systems in One - and Two - Family Dwellings and

Manufactured Homes, as adopted by the State

Fir e Marshal, notwithstanding the number of

fire sprinklers. Contractor - developed plans

may not be required by any local permitting

authority to be sealed by a registered

professional engineer.

31. Section 471.005, provides as follows:

§ 471.005. Definiti ons

As used in this chapter, the term:

* * *

(7) "Engineering" includes the term

"professional engineering" and means any

service or creative work, the adequate

performance of which requires engineering

education, training, and experience in the

appli cation of special knowledge of the

mathematical, physical, and engineering

sciences to such services or creative work

as consultation, investigation, evaluation,

planning, and design of engineering works

and systems, planning the use of land and

water, tea ching of the principles and

methods of engineering design, engineering

surveys, and the inspection of construction

for the purpose of determining in general if

the work is proceeding in compliance with

drawings and specifications, any of which

embraces suc h services or work, either

public or private, in connection with any

utilities, structures, buildings, machines,

equipment, processes, work systems,

projects, and industrial or consumer

products or equipment of a mechanical,

electrical, hydraulic, pneumati c, or thermal

nature, insofar as they involve safeguarding

life, health, or property; and includes such

other professional services as may be

necessary to the planning, progress, and

completion of any engineering services. A

person who practices any branc h of

engineering; who, by verbal claim, sign,

advertisement, letterhead, or card, or in

any other way, represents himself or herself

to be an engineer or, through the use of

some other title, implies that he or she is

an engineer or that he or she is licen sed

under this chapter; or who holds himself or

herself out as able to perform, or does

perform, any engineering service or work or

any other service designated by the

practitioner which is recognized as

engineering shall be construed to practice

or offer to practice engineering within the

meaning and intent of this chapter.

32. As noted in paragraph 30 above, a licensed fire

protection engineer may design any type of fire protection

system. A Contractor II may only design systems of 49 or fewer

heads. Thus, Mr. Maples was designing what he was authorized to

design , but he did it though a company that did not have a

C ertificate of A uthority under Section 417.023, to wit:

Panhandle.

3 3 . Without Mr. Maples' seal , the authority having

jurisdiction, the Bay County Building Official, could not have

approved Panhandle ' s fire protection plan for the Condominiums.

3 4 . This case is similar to Florida Engineers Management

Corporation v. George , Case N o. 04 - 3224 (DOAH December 7, 2004).

In that case, George wa s a licensed professional engineer who

performed engineering services for Atlantic V inyl Windows and

Doors, Inc., through Highlands Engineering, Inc. Th e latter

entity did not have a Certificate of A uthori ty at the time

George did the engineering work, al though Highlands was eligible

for a Certificate of A uthority and eventually obtained one.

3 5 . The Administrative Law Judge in the George case

concluded that George violated Section 471.023 , and it is

likewise concluded in this case that Section 471.023, a nd thus

Section 471. 033(1)(a), was violated by Mr. Maples.

3 6 . For a violation of Section 471.033(1)(a), the Board

may impose discipline ranging from a reprimand and two years

probation to a one - year suspension; and an administrative fine

from $1,000 to $ 5,000. Fla. Admin. Code R. 61G15 - 19.004(2)(s).

3 7 . The Board may deviate from the guidelines listed above

based on aggravating or mitigating circumstances. Fla. Admin.

Code R. 61G15 - 19.004(3). No aggravating circumstances are

present other than the tes timony of Mr. Maples stating he has

been practicing through Panhandle for eight or ten years.

Mitigating the circumstances is the lack of evidence

demonstrating prior disciplinary action by the Board.

RECOMMENDATION

Based upon the Findings of Fact and Con clusions of Law, it

is

RECOMMENDED that the allegations under Count One be

dismissed, that Mr. Maples be determined to be guilty of the

allegation in Count Two , that he be reprimanded , and that he be

placed on probation for two years.

DONE AND ENTERED th is 3 1st day of March , 2006, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 3 1st day of March , 2006 .

COPIES FURNISHED :

Bruce A. Campbell, Esquire

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

Alvin L. Peters, Esquire

Peters & Scoon

25 East 8th Street

Panama City, Florida 32401

Paul J. Martin, Executive Director

Board of Professional Engineers

Department of Business

and Professional Regulation

2507 Ca llaway, 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

Josefina Tamayo, General Counsel

Department of Busine ss

and Professional Regulation

Northwood Centre

1940 North Monroe 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 Or der. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.