STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

PROFESSIONAL ENGINEERS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7012

)

JAMES L. TITZEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 23, 1991, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Roberta L. Fenner, Esquire

Staff Attorney

Department of Professional Regulation

Northwood Centre

1940 N. Monroe Street, Suite 60

Tallahassee, Florida

32399-0792

For Respondent: Joseph Kuharcik, Esquire

1211 The Plaza

Singer Island, Florida

33404

STATEMENT OF THE ISSUE

Whether Respondent, a professional engineer, committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

On July 25, 1990, Petitioner filed an Administrative Complaint containing five counts against Respondent, a professional engineer. The Administrative Complaint contained factual allegations pertaining to certain fire sprinkler plans for two separate construction projects. In Counts I and II Respondent was charged with displaying negligence in the practice of engineering in violation of Section 471.033(1)(g), Florida Statutes. In Counts III and IV Respondent was charged with affixing, or permitting to be affixed, his seal or name to plans,

designs, drawings, or specifications which were not prepared by him or under his responsible supervision, direction, or control in violation of Section 471.033(1)(j), Florida Statutes. Count V alleged that Respondent did not have sufficient experience or education in the design of fire sprinkler systems and charged Respondent with affixing, or permitting to be affixed, his seal or name to plans, specifications, drawings, or other documents which is beyond his profession or speciality therein in violation of Section 471.033(1)(a), Florida Statutes. Respondent timely denied the allegations of the Administrative Complaint and requested a formal administrative hearing, and this proceeding followed.

Respondent's name was incorrectly stated by the Administrative Complaint as being James E. Titzel, instead of James L. Titzel. That error was corrected at the formal hearing, and the style of this case has been changed to reflect Respondent's correct name.

At the formal hearing, Petitioner called seven witnesses, one of whom was the Respondent, and introduced nine exhibits, each of which was accepted into evidence. Respondent testified on his own behalf and introduced the testimony of one additional witness as a late-filed deposition. The late-filed deposition was taken without objection from Petitioner.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was a professional engineer in the State of Florida, holding license number 0857461.

   
   

2. The two types of fire sprinkler systems involved in this matter are a tree type system and a loop system. In a tree type system, water travels to the sprinkler head from the main pipe and through the pipes that branch off from the main line to the head so that the sprinkler heads are served by one pipe. A looped system is more sophisticated and makes more efficient use of the principles of hydraulics. In a looped system, as the name suggests, the main line is looped so that sprinkler heads in the remote areas are served by more than one pipe. The internal diameter of the pipes to be used for a tree system can be determined through either the "pipe sizing method" or through the use of hydraulic calculations. The pipe sizing method essentially determines the internal diameter of the pipe by counting the number of sprinkler heads to be served by the various pipes and by making reference to a sizing schedule. The internal diameter of the pipes to be used for a looped system can be determined only through the use of hydraulic calculations. Hydraulic calculations employ the use of formulas which may be calculated manually or by computer. The vast majority of hydraulic calculations are performed by computer. Among the data that must be inputted in performing hydraulic calculations are the correct lengths of the pipes.

   
   

3. Plans for fire sprinkler systems are required to be signed and sealed by a professional engineer. No special training or experience is required for a professional engineer to be qualified to sign and seal such plans.

   THE BLUFF SQUARE PROJECT

   
   

4. The Bluff Square project is a commercial center located in the Town of Jupiter, Florida. Pertinent to this proceeding, a portion of that commercial center was to be remodeled so that a restaurant could occupy the demised premises. Wiggington Fire Sprinklers, Inc. (Wiggington), a contracting firm specializing in the sale and installation of fire sprinkler systems, contracted to install the fire sprinkler system for the new restaurant.

   
   

5. On November 15, 1988, Jerry Morris, a sales representative for Wiggington drew a set of plans for a fire sprinkler system for the area of the Bluff Square project that was to be occupied by the restaurant. Mr. Morris had approximately ten years of experience in designing fire sprinkler systems, but he could not sign and seal the plans because he was not a professional engineer. Wiggington hired Respondent as a consulting engineer to review the plans and to sign and seal them.

   
   

6. Respondent, whose office was six miles from Wiggington's office, did not directly assist or supervise Mr. Morris during the time Mr. Morris was drafting the fire sprinkler system for the Bluff Square project. After Mr. Morris completed the plans, he submitted the plans to Respondent for his review and for any changes that Respondent deemed appropriate. Mr. Morris considered that his work was subject to Respondent's ultimate direction and supervision, and he would have made any changes recommended by Respondent. Mr. Morris followed Wiggington's standard procedure in preparing and completing the plans and thereafter securing the review of the plans by a professional engineer prior to the professional engineer signing and sealing the plans.

   
   

7. There was no persuasive showing in this case that acceptable engineering practices required that Respondent provide over the shoulder supervision while Mr. Morris was preparing drafts of the sprinkler system.

   These plans were described as being a relative simple tree type system layout by Henry Gaggstatter, a witness for Petitioner who was accepted as an expert witness in the field of professional engineering as it pertains to fire sprinkler systems. Although Mr. Gaggstatter was of the opinion that such over the shoulder supervision is required, this opinion is rejected as being contrary to the greater weight of the evidence. There was no evidence as to the amount of time Respondent expended in the review of these plans, other than that Respondent signed and sealed the plans on November 15, 1988, the day that the plans had been submitted to him by Mr. Morris. Respondent signed and sealed the plans that had been submitted to him by Mr. Morris without making any substantial changes. Mr. Gaggstatter was unaware of the steps Respondent followed in his review, and it is clear that his testimony was based, in part, on projects of considerable more complexity than that involved in the Bluff Square Project.

   
   

8. After the plans for the Bluff Square project were signed and sealed by Respondent, they were submitted for review to the Town of Jupiter, Florida, on November 15, 1988. The Town of Jupiter did not have a fire inspector and had contracted with the Palm Beach County Fire Department (PBCFD) to review these type plans. On December 2, 1988, a reviewer for the PBCFD reviewed and approved the plans. Thereafter, a fire inspector for PBCFD inspected the premises where the sprinkler system was to be installed and observed that the contractor had dropped soffits as part of the remodeling of the premises for the restaurant that was to take occupancy. These soffits were not reflected on the plans that Respondent had signed and sealed. Thereafter, Michael Manning, a reviewer for

   PBCFD visited the premises and determined that the soffits would obstruct the discharge of water from the sprinkler heads in proximity to the soffits, resulting in the impairment of the system. After this determination was made, the plans signed and sealed by Respondent on November 15, 1988, were rejected by the Town of Jupiter.

   
   

9. Mr. Manning contacted Mr. Morris and advised that he would require the submission of revised plans. The revisions required by Mr. Manning included the addition of sprinkler heads in the walk-in cooler, the addition of sprinkler heads in the areas obstructed by the soffits, and the submission of hydraulic calculations, to include hydraulic reference points, to verify that the designed system could accommodate the additional sprinkler heads.

   
   

10. Jeff Gant, a designer at Wiggington, revised the plans to comply with the requests made by Mr. Manning. The revised plans were signed and sealed by Robert Weinstein, another professional engineer employed by Wiggington, and approved by PBCFD on December 13, 1988.

    
    

11. The plans signed and sealed by Respondent for the Buff Square were acceptable except for the problem caused by the addition of the soffits. There was no evidence that Respondent knew, or should have known, that soffits had been added during the remodeling of that portion of the Bluff Square project. The addition of the sprinkler heads in the walk-in cooler was required by Mr. Manning and incorporated in the revised plan without question by Wiggington.

    The record does not establish, however, that Respondent was negligent in failing to include the sprinkler heads in the walk-in cooler on the initial plan since sprinkler heads in a walk-in cooler are required by some plan reviewers, but not others.

    
    

    THE OLDHAM PROJECT

    
    

12. Farmer & Irwin Corporation, a mechanical contracting firm that has a division devoted to fire sprinkler systems, contracted to design and construct a fire sprinkler system for a project located in the Town of Jupiter, Florida, referred to as the Oldham project.

    
    

13. Frank Harper is the Fire Protection Project Manager at Farmer & Irwin, and has held this position for the past ten years. Mr. Harper has an associate degree in structural design, has two years of formal training in architectural design, and has completed various courses in fire sprinkler design and product calculations. Mr. Harper prepared the plans and did the computer generated calculations for the Oldham project fire sprinkler system without the assistance of Respondent.

    
    

14. Respondent has worked for Farmer & Irwin for approximately fifteen years as a consulting engineer. Among Respondent's duties was the review of fire sprinkler plans prepared by the staff of Farmer & Irwin to determine that the plans comport with pertinent codes and engineering principles. Respondent does not typically do the initial design work or the initial calculations for a system. The proposed final draft of the plans and the calculations are typically prepared by the staff of Farmer & Irwin and submitted to Respondent's review either at Respondent's office or at the Farmer & Irwin offices. Consistent with the usual practice, Mr. Harper submitted the Oldham project plans, including the supporting calculations, to Respondent for his review. Respondent signed and sealed the Oldham project plans on March 27, 1989, without making any revisions in either the plans or the calculations.

15. There was no persuasive showing in this case that acceptable engineering practices required that Respondent provide over the shoulder supervision while Mr. Harper was preparing drafts of the sprinkler system. These plans were described as being a relative simple loop system layout by Mr. Gaggstatter. Although Mr. Gaggstatter was of the opinion that such over the shoulder supervision is required, this opinion is rejected as being contrary to the greater weight of the evidence. There was no evidence as to the amount of time Respondent expended in the review of these plans. Mr. Gaggstatter was

    unaware of the steps Respondent followed in his review, and it is clear that his testimony was based, in part, on projects of considerable more complexity than that involved in the Oldham Project.

    
    

16. The Oldham project plans were submitted to the Town of Jupiter for review on March 29, 1989, and were subsequently reviewed by Michael Manning. Mr. Manning discovered in his review that a significant error had been made in the hydraulic calculations. The hydraulic calculations were based on erroneous data, which occurred either as the result of an error made by Mr. Harper while

    inputting data or as a result of an error made by the computer in processing the data. The hydraulic calculations were performed based on the erroneous data that the distance between node points 27 and 28 (pipe No. 27) was 3.3 feet and on the erroneous data that the distance between node points 25 and 30 (pipe No.

    30) was 3.3 feet. The correct distance between node points 27 and 28 was approximately 330 feet and, consequently, the length of the pipe No. 27 was required to be approximately 330 feet in length instead of 3.3 feet in length. Additionally the correct distance between node points 25 and 30 was approximately 330 feet and the length of pipe No. 30 was required to be approximately 330 feet in length instead of 3.3 feet in length. The distances between these node points and the lengths of these pipes were accurately reflected by the plans.

    
    

17. The computation, using the erroneous data, resulted in the design of the system using pipe with an internal diameter of two and one half inches. The computation, using the correct length for pipes No. 27 and 30 revealed that the system required the use of pipe with an internal diameter of three inches.

    
    

18. There was a conflict in the evidence as to whether Respondent was negligent in failing to detect the error that was contained in the hydraulic calculations. For the reasons discussed in the Conclusions of Law portion of this Recommended Order, it is concluded that it is unnecessary to resolve this conflict. 1/

    
    

19. After detecting the error, Mr. Manning talked by telephone with Mr. Harper about the error. The initial plans were revised by Mr. Harper using three inch pipe instead of 2 1/2 inch pipe. On April 3, 1989, Respondent reviewed the revised plans and signed and sealed them. The revised plans were thereafter submitted to the Town of Jupiter and approved. The system would not have performed to its capability had 2 1/2 inch pipe been used.

    
    

20. The allegations pertinent to Respondent's negligence relating to the Oldham project are found in Count Two, paragraphs 7 - 9, of the Administrative Complaint as follows:

    
    

    1. On or about March 27, 1989 and April 3, 1989, Respondent signed and sealed a set of fire sprinkler plans for a project known as Oldham located at Commerce Lane, Pennock Park.

    2. Said plans were negligent in that they contained pipe lengths which were insufficient.

    3. Based on the foregoing, Respondent violated Section 471.033(1)(g), Florida Statutes, by displaying negligence in the practice of engineering.

       
       

21. The pipe lengths reflected on the plans for the Oldham project were appropriate. However, the internal diameter of the pipes were undersized because the lengths of two of the pipes were erroneously inputted in computing the hydraulic requirements for the system.

    
    

22. Mr. Gaggstatter was of the opinion, based on his review of the project plans for the Bluff Square project and of the Oldham project, that Respondent does not have sufficient experience or education to design a fire sprinkler system. No special training or experienced is required for a professional engineer to review, sign, and seal fire sprinkler systems. Respondent, as a professional engineer, possesses the necessary license to perform such work and he has done such work for at least fifteen years. The opinion of Mr. Gaggstatter is, in this regard, rejected as being contrary to the greater weight of the evidence.

    
    

23. On July 16, 1990, a Final Order was entered in Petitioner's Case Nos. 0077912 & 007892 which placed Respondent on probation for a period of one year pursuant to the terms and conditions of a Settlement Stipulation entered into by the parties in settlement of those two cases. There is no allegation that the acts alleged in this proceeding would constitute a violation of the terms of that probation.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

25. Section 471.033, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:

       1. Violating any provision of s. 471.025, s. 471.031, or s. 455.227(1) or any other provision of this chapter or rule of the board or department;

    * * *

    (g) Fraud or deceit, negligence, incompetence, or misconduct in the practice of engineering;

    * * *

    (j) Affixing or permitting to be affixed his seal or his name to any plans, designs, drawings, or specifications which were not prepared by him or under his responsible supervision, direction, or control ...

26. Section 471.025(3), Florida Statutes, provides as follows:

    
    

    (3) No registrant shall affix or permit to be affixed his seal or name to any plan, specification, drawing, or other document which depicts work which he is not licensed to perform or which is beyond his profession or speciality therein.

    
    

27. Rule 21H-18.011(1), Florida Administrative Code, provides the following definition pertinent to these proceedings:

    
    

    (1) "Responsible Charge" shall mean direct control and personal supervision of engineering work done by oneself or by others over which the applicant exercises supervisory authority.

    
    

28. Rule 21H-19.001, Florida Administrative Code, provides, in pertinent part, 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, is 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 those documents that conform to

    acceptable engineering standards and safeguard the life, health, property and welfare of the public. ...

    
    

29. Petitioner failed to establish that Respondent was not qualified to review, sign, and seal fire sprinkler system plans, and, consequently, failed to establish that Respondent violated the provisions of either Section 471.025(3) or of Section 471.033(1)(a), Florida Statutes, as alleged in Count V of the Administrative Complaint.

    
    

30. Petitioner failed to establish that the plans for the fire sprinkler system for the Bluffs Square project that Respondent signed and sealed on November 15, 1988, was negligently prepared. Although these plans, as initially designed, did not make any adjustment for the dropped soffits, there was no evidence that Respondent was responsible for that omission or that he knew or should have known about the dropped soffits. The plans signed November 15, 1988, did not include hydraulic calculations or hydraulic reference points, but the evidence was clear that the pipe sizing method used by those plans was appropriate. Consequently, hydraulic calculations and hydraulic reference points became appropriate to verify the capability of the revised system only after Mr. Manning required that additional sprinkler heads be added.

31. Counts Three and Four of the Administrative Complaint charge Respondent with "plan stamping" in violation of Section 471.033(1)(j), Florida Statutes, in regard to the Bluffs Square project and the Oldham project, respectively. In each case, Respondent had no input in the design of the system until after the proposed final drafts of the plans were submitted to him for his review. At that time, however, the plans came under his review and control, and he assumed responsible supervision of these plans within the meaning of Section 471.033(1)(j), Florida Statutes. While the extent of Respondent's review of each of these plans was not established, Respondent testified that he reviewed each plan prior to signing and sealing that plan. There was no clear and convincing evidence that Respondent failed to give either plan a meaningful review. The testimony of the respective drafters of these plans, both of whom were experienced, established that they worked under Respondent's ultimate supervision and that he was responsible for the final approval of these plans. It is concluded that Petitioner failed to establish the allegations of Counts Three and Four of the Administrative Complaint that Respondent engaged in plan stamping in violation of Section 471.033(1)(j), Florida Statutes. Compare, the Recommended Order entered October 15, 1990, in Department of Professional Regulation v. Michael V. Carr, P.E., DOAH Case Nos. 90-2420 and 90-2421, and the Recommended Order entered March 25, 1991, and Final Order entered July 18, 1991, in Department of Professional Regulation, Board of Engineering v. Monrad R. Thue, DOAH Case No. 90-5994. Both of these cases involved allegations against an engineer that he had engaged in plan stamping based on facts that are similar to the facts of the pending case. In both of these other cases, the Hearing Officer concluded that no violation of Section 471.033(1)(j), Florida Statutes, had occurred. The following from footnote 1 on page 3 of the Recommended Order in Thue, supra, is also pertinent to this proceeding:

    
    

    ... [I]t is specifically noted that the Petitioner's proof does not clearly establish the nature, scope, or quality of supervision, direction, or control required of the statute. Absent clear and convincing proof of the nature of the requirement, the Petitioner cannot establish a departure from the requirement by the required clear and convincing evidence.

    
    

32. The remaining count, Count Two, charges Respondent with negligence in regard to the Oldham project. That charge of negligence was imprecisely stated by paragraph 8 of the Administrative Complaint as follows: "Said plans were negligent in that they contained pipe lengths which were insufficient." The record is clear that the pipe lengths on the plans are appropriately shown. The deficiency with the Oldham project is that the hydraulic calculations were computed using two erroneous pipe lengths, which resulted in pipes with an internal diameter of 2 1/2 inches being used in the initial design instead of pipes with an internal diameter of 3 inches. Whether Respondent was negligent in failing to detect the error in the hydraulic calculations, which may be properly considered a part of the plans because they are essential to the sizing of the pipes, is a moot issue that is not framed by the manner in which Petitioner chose to word its Administrative Complaint. There is a distinct difference between being negligent by failing to incorporate in the plans pipes of insufficient length and being charged with negligence based on the making of, or failing to detect, errors in hydraulic computations which result in incorporating in the plans pipes of insufficient internal diameter. In administrative disciplinary proceedings, the agency seeking to discipline the licensee is required to set forth the charges with specificity and cannot

discipline a licensee on grounds not charged. See, Davis v. Department of Professional Regulation, 457 So. 2d 1074 (Fla. 1st DCA 1984); Willner v.

Department of Professional Regulation, Board of Medicine, 563 So. 2d 805 (Fla. 1st DCA 1990). It is concluded that Respondent was not guilty of the negligence alleged by Count Two of the Administrative Complaint and that any evidence of other negligence not alleged by the pleadings cannot serve as the basis for disciplining Respondent in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses all counts of the

Administrative Complaint that was filed against Respondent in this proceeding.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of August, 1991.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1991.

ENDNOTES

1/ If it is concluded that the conflict must be resolved, the conflict should be resolved by finding that the greater weight of the evidence establishes that Respondent had the responsibility for determining the accuracy of the computation done by Mr. Harper with the aid of his computer, that a thorough review of the calculations would have detected the error, and that Respondent was negligent in failing to detect the error.

APPENDIX TO THE RECOMMENDED ORDER

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 37, 38, 39, 42, 43, 45, 47, 53, 57, and 59 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 20, 21, 29, 34, 35, 36, are rejected as being subordinate to the findings made.

3. The proposed findings of fact in paragraphs 40, 44, 48, 49, 50, and 51 are rejected as being unnecessary to the conclusions reached. Each of these proposed findings pertain to the issue of whether Respondent was negligent in failing to detect the error in the hydraulic calculations that had been

   submitted with the Oldham Project. For the reasons previously stated, it is not necessary to resolve that issue.

4. The proposed findings of fact in paragraph 41 are rejected as being unsubstantiated by the evidence. Respondent's failure to detect the error in the hydraulic calculations that had been submitted with the Oldham Project does not establish that he did not review those calculations.

5. The proposed findings of fact in paragraphs 54, 55, and 56 are rejected as being subordinate to the findings made. The testimony of Mr. Francis does not establish industry standards for the review of plans submitted to an engineer. Rather, it establishes one set of circumstances that would, in his opinion, satisfy review requirements. When questioned later, Mr. Francis described how he would review proposed final drafts of plans and calculations for which he had not, prior to their submission to him, had supervisory responsibility.

6. The proposed findings of fact in paragraph 58 are rejected as being unnecessary to the conclusions reached since there are no requirements that Respondent attend seminars to perform the type work involved in this matter.

The post-hearing submittal submitted by Respondent is styled "Written Argument of Respondent" and does not comply with the provisions of Rule 22I- 6.031(3), Florida Administrative Code. Consequently, all proposed findings of fact interspersed through Respondent's argument that are not adopted in material part by the Recommended Order are rejected due to Respondent's failure to comply with said Rule.

COPIES FURNISHED:

Roberta L. Fenner, Esquire Staff Attorney

Department of Professional Regulation

Northwood Centre

1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Joseph Kuharcik, Esquire 1211 The Plaza

Singer Island, Florida 33404

Carrie Flynn

Acting Executive Director Department of Professional

Regulation

Board of Electrical Contractors 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF PROFESSIONAL ENGINEERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE NOS. 89-02007

DOAH CASE NOS. 90-7012

JAMES E. TITZEL,

Respondent.

/

FINAL ORDER

THIS CAUSE came on to be heard before the Board of Professional Engineers at a regularly scheduled meeting held in Tallahassee, Florida on December 4, 1991, for consideration of the Recommended Order entered in this cause by Claude

B. Arrington, Hearing Officer, dated August 22, 1991.

Appearance for Petitioner: Susan Branson, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0755

Appearance for Respondent: Betty J. Steffens

P. O. Box 2174

Tallahassee, FL 32316-2174

The Board, having reviewed the complete record in the above styled cause, including the transcript and exhibits, hereby makes the following rulings on the Exceptions filed by Petitioner to the Hearing Officer's Recommended Order.

Petitioner's Exceptions were filed on September 6, 1991. A copy of said exceptions is attached to this Final Order and by reference incorporated herein.

As to those exceptions relating to the Findings of Fact, the Board ACCEPTS all of Petitioner's Exceptions to the Findings of Fact contained in the Recommended Order, for the reasons stated in said exceptions. Specifically, with respect to Finding of Fact #18, the Board rejects said finding, and instead adopts the hearing officer's footnote to that Finding of fact as the Board's Finding of Fact #18. With these modifications, the Board ACCEPTS the Findings of Fact contained in the Recommended Order.

As to those exceptions relating to the Conclusions of Law, the Board ACCEPTS the exception to Conclusion of Law #9. Respondent was on Notice as to the conduct which formed the basis of the charge of negligence in Count II of the Administrative Complaint. The wording of that Count was specific enough to charge Respondent with negligence because of inclusion of an incorrect pipe length in the calculations, which are part of the plans. With these modifications, the Board ACCEPTS the Conclusions of Law in the Recommended Order.

The Board hereby REJECTS the Recommended Penalty of the Hearing Officer.

The Board specifically finds as an aggravating circumstance that Respondent has previously been disciplined for violations of the practice act, and that he was under probation for one such violation at the time of this occurrence. It is therefore

ORDERED, that Respondent's license to practice engineering be and the same is hereby REVOKED.

The Parties are notified, pursuant to Section 120.68, Florida Statutes, that they may appeal this Final Order by filing, within thirty days of the filing date of this Order, a notice of appeal, accompanied by filing fees prescribed by law, with the District Court of Appeal.

DONE and ORDERED this 31st day of December , 1991, by the Florida State Board of Professional Engineers.

WILLIAM H. PALM CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to JAMES E. TITZEL, c/o Joseph Kurzcik, Esquire, 1211 The Plaza, Singer Island, Florida 33404, Betty J. Steffens, Esquire P. O. Box 2174, Tallahassee, Florida 32316-2174 and Susan Branson, Esquire, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399- 0752 this 7th day of January ,1992.

Docket for Case No: 90-007012

Orders for Case No: 90-007012