05-004271PL Florida Engineers Management Corporation vs. Lester M. Maples, P.E. Status: Closed Recommended Order on Friday, April 28, 2006.

Summary: Respondent offered engineering opinions in a disciplinary proceeding without being informed as to the facts.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4271PL

)

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

Administrative Hearings, on February 14, 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

The issue is whether Respondent violated Sections

455.227(1)(a) and 471.033(1)(g), Florida Statutes.

PRELIMINARY STATEMENT

The genesis of this matter was the filing of an

Administrative Complaint on September 19, 2005, by the Florida

Engineers Ma nagement Corporation (FEMC) , before the Board of

Professional Engineers (Board) . The gist of the complaint was

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

engineer, engaged in misconduct in the practice of engineering

by expressing an o pinion publicly on an engineering subject

without being informed as to the facts relating thereto; or that

he was untruthful, deceptive , or misleading in testimony.

The dissembling charged was alleged to have occurred in

Division of Administrative Hearing Case N o. 05 - 2049 PL , which was

heard by Administrative Law Judge Ste phen Dean on August 11,

2005. The Administrative Complaint did not cite with

particularity to the transcript that was prepared in that case.

The Administrative Complaint lack s specificit y in that it does

not reveal on what page or pages, or on what line or lines in

the transcript the alleged offending language appears . It does

not allege what specific words were spoken that gives rise to

the charges against Mr. Maples in this case .

Mr. Maples disputed the facts contained in the

Administrative Complaint in an Election of Rights filed with

FEMC on October 18, 2005. In a letter dated October 20, 2005,

FEMC informed counsel for Mr. Maples that his client had failed

to elucidate the facts di sputed. This generated a Supplemental

Statement of Disputed Issues of Material Fact in Accordance with

Florida Administrative Code Rule 28 - 106.201 , which was filed

with FEMC on November 10, 2005.

Subsequently, Mr. Maples filed with FEMC a Motion to

Dismis s Administrative Complaint. This Motion pointed out that

the Complaint fail s to identify with specificity any testimony

of Mr. Maples that was "uniformed, or untruthful, deceptive, or

misleading." Mr. Maples alleged, with good reason, that he was

not ade quately informed of the specific acts "for which the

Petitioner is seeking punishment." FEMC did not respond to the

Moti on. On November 21, 2005, the C omplaint and allied papers

were filed with the Division of Administrative Hearings.

The hearing was set for February 13 and 14, 2006 . It

commenced on February 14, 2006 , and was completed at the end of

the day.

At the hearing, FEMC presented the testimony of two

witnesses and offered Exhibit Nos. 1 through 5 that were

accepted into evidence. Two of the fiv e were group exhibits.

Mr. Maples presented the testimony of Chris Thomas , and

Mr. Maples testified on his own behalf. Mr. Maples offered

Exhibit No. 1, and it was accepted into evidence.

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

hearing, Pe titioner and Respondent filed their Proposed Findings

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

respectively .

References to statutes are to Florida Statutes (200 5 )

unless otherwise noted.

FINDINGS OF FACT

1. Mr. Maples is a licensed p rofessional engineer in the

State of Florida. He holds license n o. PE 10214 , and he

practices engineering in the Panama City, Florida, area. During

all times pertinent Mr. Maples held an active license and

practiced pursuant to it.

2. FEMC is charged w ith providing administrative,

investigative, and prosecutorial services to the Board pursuant

to Section 471.038, Florida Statutes.

3. The Board exists pursuant to Section 471.007 , Florida

Statutes , and is authorized to discipline engineers under its

aut hority by Section 455.225 , Florida Statutes .

4. Mr. Maples signed and sealed three pages of sprinkler

system plans for the Wellness Center at Gulf Coast Community

College (Wellness Center), located in Panama City, Florida.

These plans were admitted as P etitioner's Exhibit No. 2 . No

date can be observed on the seal on Petitioner's Exhibit No. 2.

It either is illegible or a date was never placed upon it.

Hydraulic c alculations, which use drawings as a source document,

and which appear to coincide with P etitioner's Exhibit No. 2,

were dated November 15, 2001. It is deduced, therefore, that

Petitioner's Exhibit No. 2 was drawn on or about November 15,

2001.

5. Petitioner filed an Administrative Complaint against

Respondent on April 1, 2005. The Adminis trative Complaint

alleged that the plans and calculations for the Wellness Center

demonstrated negligence in the practice of engineering. T hat

charge resulted in an final hearing conducted by Administrative

Law Judge Stephen Dean on August 11, 2005. That case number was

DOAH Case N o. 05 - 2049 PL . On October 13, 2005, Judge Dean

recommended that the Complaint be dismissed.

6. One of the allegations of negligence in 05 - 2049 PL ,

related to a charge that inadequate water would be supplied to

the hydraulically most demanding (HMD) area in the event of a

fire. It was alleged, and proof was elicited, that a single 1

and 1/4 - inch pipe traveling from a riser, across the men's

shower area to the women's shower area, would be insufficient.

This pipe is identified o n Petitioner's Exhibit No. 2 as a line

between Node 45 and Node 25 . This pipe leads to a "T"

intersection and further piping carries water, when activated,

to the women's shower area.

7. The matter of whether adequate water would be supplied

to the HMD devolved into whether the plans called for one 61 -

f oo t long, 1 and 1/4 - inch diameter pipe, or two 61 - f oot long, 1

and 1/4 - inch diameter pipes. Because there was no pump provided

on the drawings, and in fact there was no plan to install a

pump , two 61 - f oot long, 1 and 1/4 - inch diameter pipes were

necessary to provide sufficient water in case of fire.

8 . As was illuminated in Case No. 05 - 2049 PL , calculations

were made, based on the drawings, in order to ensure that the

HMD area will receive 1500 square fee t of coverage per sprinkler

head required by the contractor . The coverage required by the

contractor exceeds that required by National Fire Protection

Association - 13 standards. HMD calculations are made at a point

most remote from the source of water . T he hydraulic

calculations are produced through the use of a commercially

produced computer program. Calculations from Case No. 05 - 2049 PL

became Petitioner's Exhibit No. 3 in this case.

9 . At the hearing in Case No. 05 - 2049 PL , the allegation

that the fire sprinkler plans signed and sealed by Mr. Maples

would not provide adequate water pressure to the HMD area was

rejected by Judge Dean . This is because Mr. Maples claimed that

the plans, when viewed in light of the calculations, actually

depicted two 61 - fo ot long pipes, 1 and 1/4 - inch and Judge Dean,

while determining that the depiction was inadequate for that

purpose, found in essence that adequate water would be provided

to the HMD.

10 . Mr. Maples works closely with Chris Thomas, a

sprinkler contractor whose license does not permit him to design

a fire suppression system that consists of more than 49 heads.

Their working arrangement is such that it would be expected that

Mr. Thomas would understand Mr. Maples' drawings even if they

were not as complete as they would be if the drawings were made

for a contractor other than Mr. Thomas. In fact, Mr. Thomas

participated in the production of the drawings signed and sealed

by Mr. Maples.

11 . More than one set of drawings were used for the

Wellness Center pr oject. The project came under the

jurisdiction of the Florida Department of Education. That

agency approved the p lans and the Florida State Fire Marshal

approved the plans , although it is not certain that the plans

those agencies approved were Petitioner 's Exhibit No. 2 .

12 . There were errors in the data entry on the hydraulic

calculations.

13 . The building was completed prior to the time Case No.

05 - 2049 PL was heard on August 11, 2005 .

14 . Using the plans drawn by Mr. Maples, Mr. Thomas's

forem e n for the Wellness Center installed a single pipe between

Node 45 and Node 25 . On a weekend subsequent to the hearing in

Case No. 05 - 2049 PL , Mr. Thomas went to the Wellness Center and

discovered that only one 61 - f oot long, 1 and 1/4 - inch diameter

pipe had been installed in the area represent ed to be between

Node 45 and Node 25 . Mr. Thomas immediately installed a second

61 - f oo t long, 1 and 1/4 - inch diameter pipe .

15. Mr. Maples never went to the site and, accordingly,

was unaware at the time he testified in Cas e No. 05 - 2049 PL , that

only one pipe had been installed.

1 6 . The Administrative Complaint lists five statements

made by Mr. Maples in Case No. 05 - 2049 PL that are alleged to

express "an opinion publicly on an engineering subject without

being informed as to the facts relating thereto . " The five

statements are further allege d to describe testimony that was,

" untruthful, deceptive, or misleading in any professional

statement or testimony." As noted above, the statements do not

cite with particularity to the T ranscript in Case No. 05 - 2049 PL .

The f ive statements read as follow s :

7. Respondent testified at the hearing that

the line on the plans appearing as a single

pipe, in fact, represented two pipes, 61

feet long with 1 1/4 inch diameters, running

over the men's showers.

8. Respondent testified at the hearing that

the intent to install the sprinkler system

with two pipes over the men's showers was

obvious to anyone with experience in fire

sprinkler systems.

9. Respondent testified that he had signed

and sealed revised plans showing a second

parallel line over the men's showers.

10. Respondent testified that the second 61

foot long 1 1/4 inch diameter pipe was

represented in his calculations by a 3 foot

length of pipe.

11. Respondent testified that h e used pipe

lengths in the supporting calculations that

match the pipe lengths shown in the plans.

1 7 . T he actual testimony of Mr. Maples that addresses the

pipes follows below. The initial questions were posed by

Mr. Maples' attorney, Mr. Peters at p age 260, line 13 , of the

T ranscript in Case No. 05 - 2049 PL . .

Q. Okay. Now, the bulk of this allegation

was that the hydraulically demanding design

area did not have sufficient water pressure.

Let's talk about that. Does the most

hydraulically demandin g area in this project

show that it was receiving sufficient water

pressure and distribution ?

A. Yes, the calculations show that

specifically.

Q. Do you have any concern that the most

hydraulically demanding area is being under

served?

A. I do not.

Q. Do the plans -- while they may not be

perfect -- do they reasonably and

competently show sufficient water pressure

getting to the most hydraulically demanding

are a ?

A. Yes.

(At this point there was a recess.

Subsequently, the interrogation cont inued . )

* * *

Q. So do the plans and do the calculations

show that there's sufficient water getting

to the most challenging --

A. Yes, it does.

Q. Okay. And let's take a minute to just

make sure we review our nodal system.

(At this point the Court interjected and

moved the questioning away from the nodal

system. The nodal system had been reviewed

earlier in the hearing.)

* * *

Q. How is that? Okay.

Ther e is a segment called 20 to 25, which is

an inch - and - a - quarter, 61 feet long .

A. Correct .

Q. And is there a parallel pipe in the same

plane that runs along that same segment ?

A. Yes.

Q. How can you tell that from this drawing

and this set of calculations ?

A. I can tell on the calculations, because

it tells me from 25 to 30, there's a

connection. It tells me that 30 is

connected to a three - inch main.

Q. All right. Can you show these

calculations and -- go over them with us and

show us how you see that from these

documents ?

A. Where is my set?

Q. Right there. That's yours.

THE COURT: Let me ask you this, sir. I see

where it says that it's connected to that.

But by [ sic ] my question is, it says that

it's only 3 - feet long .

THE WITNESS: Three feet. Yes, sir. Let me

-- can I address that?

THE COURT: Surely.

THE WITNESS: T hat is -- I will say an input

error on it. But I want to tell you that it

doesn't make any difference into the

function of the system.

BY M R . PETERS:

Q. Tell us why not .

A. It says 25 to 30 tells me there's a

line, a connection to a 3 - inch -- to no de

30. What that tells me is that 3 - inch line

is feeding this row of sprinklers right

here. Even though it says 3 feet, what it

does, it has a short segment of line that

just gushes water through there and makes

those sprinklers flow a whole lot more tha n

it needed. All right. When you put the

right length, you put 61 feet in there, it

comes back to just a bout what this line

does, and it cuts the sprinkler flow down in

those three areas . But it doesn't effect

[ sic ] the function of the system because it

doesn 't effect [ sic ] the head loss in the

main system where the pressure goes in the

3 - inch line.

Q. H ead loss. Take a minute to try to

explain that.

A. The water -- it doesn't effect [ sic ] the

pressure that the sprinklers are getting.

What it does, when you put 61 feet in there,

those three sprinkler s that where it shows a

3 - feet [ sic ] connection, it cuts them down

from sprinkling a whole lot more water

that's needed back to what's required. But

as you go along this -- as you go along this

line, go along this line where the 3 - inch

line is up here, at each place on the 3 - inch

line, there's a branch that goes towards the

sprinklers. And each branch line is

calculated separately. And the most

demanding branch line is what puts the

pressure that's req uired -- the flow - -

required a 3 - inch line. So what the 3 - foot

did, it made these three sprinklers right

here flow considerably more, because it was

just a little short piece of pipe and didn't

have any friction loss going down through

there. But it didn 't eff ect [ sic ] -- it

didn't effect [ sic ] the system head.

Because that had less head loss than this

one did. So when you put --

BY THE COURT:

Q. Head loss is effected [ sic ] by, what?

A. The length of pipe. Flow -- the length

of pipe and size of pipe.

Q. So will a longer piece of pipe --

assuming all the pipes are the same diameter

-- does the pipe -- does the head loss on a

short piece, is it greater than a long

piece?

A. Oh, no. Head loss on short pieces are

considerably less than a long pie ce loss.

The further it travels, the more pressure it

loses.

Q. Okay. And the pressure loss is

transmitted, if you will, back to the 3 - inch

main ? It effects [ sic ] the --

A. It effects [ sic ] what the flow comes

from a 3 - inch main. The 3 - inch main ef fects

[ sic ] it, because the three - inch main has

the water supply, and has the pressur e

that's pushing it.

Q. S o the calculation for this

system --

A. Yeah.

Q. -- even though there's an error, the error

is not a critical error?

A. No , sir, it does no t effect

[ sic ] the function of the system.

Q. It doesn't effect [ sic ] the function of

the system. Thank you.

A. What it does, it shows a little more

water flow.

THE COURT: Okay.

DIRECT EXAMINATION (RESUMED)

BY MR. PETERS:

Q. So do the plans -- does it need a pump

to get water to this area?

A. No, sir.

THE COURT: Now , let me ask you a follow up

on that.

THE WITNESS: All right.

THE COURT: After Mr. Schmidt put his input

in, and he was basically engaged to do

exactly what he did, and that w as, to go

through the plans, catch any things that he

was concerned about, and turn that back to

the general contractor so the general

contractor could go back to the people he

needed to go back to?

THE WITNESS: Yes.

THE COURT: The general contractor c ame back

to you, and you did whatever was necessary

to generate the second set of plans that

you - all put in, which is your Respondent's

1?

MR. PETERS: Well, although Respondent's --

can I ask him a couple of questions ?

THE COURT: Sure.

BY MR. PETERS:

Q. Respondent's 1, this is the one that

shows the second line, the parallel lines,

right?

A. Yes, if this is the plan we're looking

at, it shows the second -- physically shows

-- se parated it so anybody could see.

THE COURT: It also shows the point o f

service .

THE WITNESS: Yes, it also shows a different

point of service. It shows -- bring it back

up to the 5.

BY MR. PETERS:

Q. But these don't bear your signature .

A. This particular set doesn't. We signed

some, but I don't know where they are. That

came from Gulf Coast College there.

Q. All right. All right. In terms of what

this case is directly about, then, do the

plans provide pipes with adequate diameters

for water pressure to provide protection for

the area most remote from the main ri ser?

A. Absolutely.

Q. Do the p la ns provide -- do the plans

need to show a pump to increase water

pressure for the pipe design use?

A. No.

Q. And did you use pipe lengths in the

supporting calculations that match the pipe

lengths shown in the plans ?

A. Yes.

(At this point Mr. Peters addresses another

matter. Thereafter, Mr. Campbell proceeded

with his cross - examination on Page 268, line

25.)

* * *

BY MR. CAMPBELL

Q. Mr. Maples, there was no testimony about

phantom pipes in that previous cas e, was

there?

A. No.

Q. And you would admit that if there was no

pipe underneath th is Node 25 pipe , that this

fork of six sprinkler heads would not

adequately be served by 1 - and - a - quarter inch

diameter pipe; isn't that correct?

A. That 's correct , wit h a caveat. The NFPA

13 has a section that says on the de nsity .1

in a 1500 square feet [ sic ] area, if it is -

- if it says ceiling heights less than 20

feet, and this is 10 , that you can reduce

the area of sprinkling by 40 percent. So

that means, if we d id that, we would do 900

square feet, and that would be adequate.

Now , if you went strictly by NFPA 13 --

Q. But that's not what you drew here. You

drew or attempted to draw 1500 square feet.

A. That's what we were told to do. But

that's not in acco rdance with NFPA 13. NFPA

13 is less. And we agree NFPA 13 rules.

Q. Now, you initially said this was your

initial set of plans before you got any

input such as being told to do 1500 square

feet; is that correct?

A. No, no, I was told to do that to s tart

with.

Q. All right. Was that part of the

specifications on this job?

A. I didn't see it. That was -- according

to the contractor, that was the

specifications from Schmidt or whoever they

were.

Q. All right. Now, looking at the

Respondent's 1 y ou did not sign.

A. That one is not signed, but I know there

were some that were signed.

Q. D oesn't it appear that in these entries

for pressures and static pressures, at some

point, there was a whiteout and a reentry on

the first page of the sheet ?

A. I can't tell you that. It may have

been.

Q. All right. Now, in fact, you have got

two separate entries of written information

where some of those are different. For

instance, the required pressure is

different --

A. Yes, because it's a differe nt system.

This is one that's not in contention right

here. This was the gym. It's got the same

static pressures and flows, but this is a

different set of calculations of the gym.

This has not been -- that was for the

gymnasium, just to see if there wa s enough

water. They asked us to do that.

Q. Now, is the gymnasium a part of the

Wellness Center? I thought that was what

the Wellness Center was.

A. Well, it's part of the Wellness, yes.

But it's a separate part. But t his has

never been in content ion.

Q. Well, now, on the set of plans, your

initial set of plans, there were no such

double entries?

A. No, they didn't ask for it then.

Q. And this separate set of entries here

for the gym -- well, this - – yeah -- is

still used by the same riser an d the same --

A. Yes, sir.

Q. -- point of service.

A. Yes, sir.

Q. So there would be a separate set of

calculations somewhere for the gym; is that

what you're saying?

A. My understanding, they asked Chris to do

a set of calculations just so they would

have plenty of water at the gym. That's

never been in contention. Because one

thing, it's located right at the riser.

Q. Now, isn't it a fact, if someone never

looked a t the calculations but only looked

at page 2 of Exhibit P - 1, that where the

no de 25 seems to go up to node 45, there is

only on e line indicating one pipe?

A. Depending on who looks at it. Anybody

familiar with the calculations and sprinkler

systems would know.

Q. If they saw no calculations whatsoever,

they just looked at this sheet --

A. I would assume so. If it was Joe Blow

out there that knew nothing, he would have

probably been, you know --

Q. He would think there's one pipe there.

A. Who would do that ?

Q. So the basis of your statement that

anyone that knew that th ere had to be more

than one pipe is -- anyone with experience

in fire protection systems would know you

could not feed --

A. That's correct.

Q. -- 6 heads 60 feet down from the 3 - inch

pipe on a one --

A. An inexperienced person, probably,

correct.

Q . Well, now, an experienced person would

know automatically you couldn't fee d it that

way, right? You would have to have a second

pipe; that's what you're saying?

A. Well, you would have to go by the

calculations. I didn't say that.

Q. But if you di dn't go by the

calculations, if you didn't know anything

about the calculations, would it be obvious

to anyone with experience in fire protection

sprinkler systems that at th e end of 60 feet

of a one - and - a - one - quarter - inch pipe you

could not support 50 pou nds pressure --

support 6 heads on 1 inch pipe?

A. I wouldn't say that. Because if I was

an experienced person in fire protection and

installation, I would look at that, and I

would look for something else to see if

there was something else.

Q. So tha t sheet of plans by itself is

insufficient even with someone with

experience in fire protection?

A. No, I didn't say that. I said I would

be looking for something else.

Q. You said you would be looking for

something else.

A. He would know that there was something

supporting it. And especially a licensed

contractor that's licensed to design

sprinklers, too. He would obviously know.

1 8 . The statement set forth in paragraph 7 , of the

Administrative Complaint do es not appear in the T ranscript in

Cas e No. 05 - 2049 PL . Mr. Maples said nothing about showers. He

did not say that the single pipe represented two pipes each of

which w as 61 feet long. What he said was that the calculations

told him that there is a parallel pipe in the same plan as the

pipe shown on the drawings. He said he could tell that because

the calculations showed from Node 25 to 30 a connection to a 3 -

inch main. Mr. Maples' testimony in this regard was confusing

and difficult to follow but not untruthful, deceptive, or

misleading. He was not giving fact testimony but was expressing

an opinion.

19. The statement set forth in paragraph 8, of the

Administrative Co mplaint does not appear in the T ranscript in

Case No. 05 - 2049 PL . Mr. Maples never said that the "intent to

install the sp rinkler system with two pipes over the men's

showers was obvious to anyone with experience in fire sprinkler

systems." What he said was, that, "Anybody familiar with the

calculations and sprinkler systems would know." He further said

that if someone fami liar with sprinkler systems would know that

two pipes were necessary looked at the plans without the

calculations that he "assumed" they would know there should be

two pipes.

20. With regard to the statement set forth in paragraph 8,

when offered to agre e with the statement, ". . . an experienced

person would know automatically you couldn't feed it that way,

right? You would have to have a second pipe; that's what you

are saying?" Mr. Maples declined. In response to the question

he said, "Well, you wou ld have to go by the calculations. I

didn't say that." Mr. Maples' testimony in this regard was not

untruthful, deceptive, or misleading. He was not giving fact

testimony but was expressing an opinion.

21. The statement alleged as paragraph 9 does not appear

in the T ranscript. With regard to other plans, he said in

response to a question about Respondent's Exhibit No. 1 that,

". . . it shows the second -- physically shows -- separated so any

body could see." He noted that Respondent's Exhibit No. 1 did

n ot bear his signature but said that he had signed some similar

plans . There is no proof in the record that his testimony in

this regard was untruthful, deceptive, or misleading.

22 . T he allegation in paragraph 10 of the Administrative

Complaint was that Mr. Maples said that the second 61 - foot long ,

1 and 1/4 - inch diameter pipe " was represented in his

calculations by a 3 foot length of pipe ." Mr. Maples never

uttered that statement. In response to a question from Judge

Dean , with regard to the 3 - foot lon g pipe, Mr. Maples said,

"That is -- I will say an input error on it." Mr. Maples'

testimony in this regard was confusing and difficult to follow

but not untruthful, deceptive, or misleading.

2 3 . The allegation in paragraph 1 1 of the Administrative

Comp laint was that Mr. Maples said that, "he used pipe lengths

in the supporting calculations that match the pipe lengths shown

in the plans. " This allegation approximates a verbatim

statement made by Mr. Maples. However, he had earlier noted,

and thus quali fied the statement when he stated that there was

input error. Mr. Maples' testimony in this regard was not

untruthful, deceptive, or misleading.

24. The allegations contained in the Administrative

Complaint at paragraphs 7 and 8, were fairly alleged as the

opinions of Mr. Maples. The opinions alleged are in essence

that a person with experience in the fire suppression business

could determine from the plans and calculations that a second

61 - foot long, 1 and 1/4 - inch pipe would run parallel to the pipe

s hown from Node 25 to 45.

25. After an exhaustive study of the plans and

calculations in this case, the Administrative Law Judge has not

been able to conclude that the testimony as to the second pipe

is borne out by Petitioner's Exhibit 2 or the calculati ons that

are Petitioner's Exhibit 3. Moreover, Judge Dean found that the

intent to have two pipes, "was not adequately shown in the

original drawings."

26. The foremen sent by Mr. Thomas to install the system

did not conclude that two parallel pipes wer e required. They

installed only one.

27. An expert called by FEMC, Larry Simmons, a n expert in

professional engineer ing, stated unequivocally in this case that

using Mr. Maples ' drawings and calculations , he could not

determine that a second 61 - foot lon g , 1 and 1/4 - inch pipe was

called for by the plans.

2 8 . Judge Dean was not misled by Mr. Maples' testimony in

Case No. 05 - 2049 PL , with regard to the pipe . This was indicated

by his acknowledgement in Finding of Fact 8 in his Recommended

Order that the intent to have two pipes, "was not adequately

shown in the original drawings." Judge Dean was not called as a

witness so that he could reveal if he was misled based on the

information that became available after the hearing in Case No.

05 - 2049 PL .

2 9 . It was not proven by clear and convincing evidence

that Mr. Maples was "untruthful, deceptive, or misleading in any

professional statement or testimony." As will be discussed in

detail below, Mr. Maples engaged in misconduct in the practice

of engineering b y expressing an opinion publicly on an

engineering subject without being informed as to the facts

relating thereto.

CONCLUSIONS OF LAW

30 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceed ing. § 120.57(1), Fla. Stat.

31 . Section 471.033(1)(a) , Florida Statutes, authorizes

the Board, on whose behalf the Corporation has prosecuted this

matter pursuant to Section 471.038(3), Florida Statutes, to

discipline an engineer proved guilty of misc onduct in the

practice of engineering, which is specifically addressed in

Section 471.033(1)(g) , Florida Statutes, or guilty of rendering

an opinion publicly on an engineering subject without being

informed as to the facts relating thereto" or being "untru thful,

deceptive, or misleading in any professional statement or

testimony , " which is specifically addressed in Section

455.227(1)(a) , Florida Statutes .

32 . Section 471.033(1)(a), Florida Statutes, authorizes

the Board, on whose behalf the Corporation has prosecuted this

matter pursuant to Section 471.038(3), Florida Statutes, to

discipline an engineer proved guilty of violating Section s

455.227(1)(a) and 471.033(1)(g) , Florida Statutes .

33 . 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 923, 925 (Fla. 1st DCA

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

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

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

the Corporation has the burden of proof. Department of

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

1981).

35 . 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).

3 6 . The Florida Engineers Management Corporation must

prove the allegations by clear and convincing evidence if it is

to prevail. Ferris v . Turlington , 510 So. 2d 292 (Fla. 1987).

37 . Clear and convincing evidence requires that, "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 allegat ions sought to be established."

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

3 8 . Section 455.227(1)(a), Florida Statutes, provides:

§ 455.227. Grounds for discipline;

penalties; enforcement

(1) The following acts shall constitute

gro unds for which the disciplinary actions

specified in s ubsection (2) may be taken:

(a) Making misleading, deceptive, or

fraudulent representations in or related to

the practice of the licensee's profession.

* * *

3 9 . Section 471.033(1)(g), Florida Statu tes, provides:

§ 471.033. Disciplinary proceedings

(1) The following acts constitute grounds

for which the disciplinary actions in

subsection (3) may be taken:

* * *

(g) Engaging in fraud or deceit,

negligence, incompetence, or misconduct, in

the pr actice of engineering.

* * *

40 . Florida Administrative Code Rule 61G15 - 19.001 (6)

provides:

61G15 - 19.001 Grounds for Disciplinary

Proceedings.

* * *

(6) A professional engineer shall not

commit misconduct in the practice of

engineering. Misconduct in the practice of

engineering as set forth in Section

471.033(1)(g), F.S. shall include, but not

be limited to:

(a) Expressing an opinion publicly on an

engineering subject without being informed

as to the facts relating thereto and being

competent to form a sound opinion thereupon;

(b) Being untruthful, deceptive, or

misleading in any professional report,

statement, or testimony whether or not under

oath or omitting relevant and pertinent

information from such report, statement or

testimony when the result of such omission

would or reasonably could lead to a

fallacious conclusion on the part of the

client, employer or the general

public; . . . .

41 . Only one case has been cited by Petitioner that

illuminates the meaning of Sections 455.227(1)(a) a nd

471.033(1)(g) , Florida Statutes . That case, Sheils v. Fla .

Eng ' rs . M gmt. Corp. , 886 So. 2d 426 (Fla. 4 th DCA 2004), affirms

an order of the Board that adopted a Recommended Order entered

by Administrative Law Judge Robert Meale . See Florida Engineers

Management Corporation v. John F. Sheils , Case N o. 03 - 0204 (DOAH

August 4, 2003).

42 . In Sheils , Respondent issued a report stating that a

roof wo uld withstand 70 m ile - p er - hour winds and a major storm

but omitted mention of a 100 - m ile - p er - hour design st orm. The

report, done at the behest of a contractor, was internally

inconsistent and a reading of the report without more, revealed

a deliberate intent to mislead. The Court cited Florida

Administrative Code Rule 61G15 - 19.001 (6)(b) as supporting the

conc lusion that Sheils engaged in misconduct.

4 3. In Sheils the Court noted that the Board imposed high

standards of professionalism upon engineers. This means in the

current context that something less than prevarication or

mendacity can be a basis for a finding of misconduct.

4 4 . In this case , unlike the Sheils case, there is no

evidence tending to prove that Mr. Maples was untruthful,

deceptive, or misleading in the testimony he gave in Case No.

05 - 2049 PL . It was proven , however, by clear and convincin g

evidence , that Mr. Maples provided, "an opinion publicly on an

engineering subject without being informed as to the facts

relating thereto." Thus he violated Section 471.033(1)(g) ,

Florida Statutes, as further explicated by Florida

Administrative Code R ule 61G15 - 19.001 (6)(a) .

45. Mr. Maples, relying on his own defective plans and

calculations, provided opinions in Case No. 05 - 2049 PL as to what

others would deduce upon contemplating his plans and

calculations. These types of opinions, which might be har mless

if uttered by a lay person, have special status when utte red by

a professional engineer , because they may result in someone

suffering harm or even death . It is misconduct for a

professional engineer to express opinions cavalierly or based on

uncerta in information.

4 6 . Florida Administrative Code Rule 61G15 - 19.004(2)(m)

provides that for a violation of Section 471.033(1)(g), Florida

Statutes, the Board may impose discipline ranging from a

reprimand and two years probation to a five - year suspension an d

ten years ' probation; and an administrative fine from $1,000 t o

$5,000.

47. Florida Administrative Code Rule 61G 15 - 19.004(3)

provides that the B oard shall be entitled to deviate from the

above - mentioned guidelines upon a showing of aggravating or

mitiga ting circumstances by clear and convincing evidence

presented to the B oard prior to the imposition of a final

penalty. Florida Administrative Code Rule 61G15 - 19.004(3) (a)

enumerates facts that might aggravate the offense , and Florida

Administrative Code R ule 61G15 - 19.004(3)(b) enumerates facts

that might mitigate the offense.

48. No facts were presented at the hearing which either

aggravate or mitigate the offense committed.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

R ECOMMENDED that the Board find that Respondent Lester M.

Maples did not violate Section 455.227(1)(a), Florida Statutes,

but that he offered an opinion publicly on an engineering

subject without being informed as to the facts relating thereto

in violation of the prohibitions contained in Section

471.033(1)(g) , Florida Statutes. It is further recommended that

he be reprimanded , placed on two years ' probation, and ordered

to pay an administrative fine of $1,000.

DONE AND ENTERED this 2 8 th day of A pril , 20 06, 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 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28 th day of April , 2006 .

COPIES FURNISHED :

Bruce 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 Callaway Road , Suite 200

Ta llahassee, 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 Business

and Profession al 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 Order. Any exception s

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.