STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA ENGINEERS MANAGEMENT CORPORATION,
Petitioner,
vs.
STANLEY P. NEWTON, P.E.,
Respondent.
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) Case No. 02-2536PL
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RECOMMENDED ORDER
Pursuant to notice and in accordance with Sections 120.569 and 120.57(1), Florida Statutes, a formal hearing was held in this case on September 4, 2002, in St. Petersburg, Florida. The hearing was conducted by Fred L. Buckine, Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Douglas Sunshine, Esquire
Florida Engineers Management Corporation 2507 Callaway Road, Suite 200
Tallahassee, Florida 32303
For Respondent: Eric B. Tilton, Esquire
Tilton & Metzger, P.A.
1435 East Piedmont Drive, Suite 210
Tallahassee, Florida 32308 STATEMENT OF THE ISSUE
The legal issue in this case is whether Respondent, as prime engineer of record for the owner, was negligent in the
practice of engineering because he drafted performance specifications for a specialty contractor to hire an experienced wet sprinkler fire system engineer, who would, as the delegated engineer to the prime engineer, design, sign and seal a wet sprinkler fire system to be submitted to the prime engineer for his final approval.
PRELIMINARY STATEMENT
By an Administrative Complaint dated October 12, 2001, FEMC Case No. 01-0134, the Florida Engineers Management Corporation (Board or Petitioner), notified Respondent, Stanley P. Newton,
(hereinafter Mr. Newton or Respondent), that it intended to take disciplinary action against his professional license pursuant to Chapter 455, Florida Statutes, for violation of Chapter 471, Florida Statutes, for negligence in the practice of engineering.
The Board charged Mr. Newton to have committed the specific negligent acts of:
Directing someone else to perform work in fire protection without exercising responsible charge, in that Respondent's fire protection documents and drawings failed to meet the minimum standards of Rule 61G15-32.005, Florida Administrative Code.
Directing a contractor to provide signed and sealed fire protection documents.
Delegating a complete discipline of which he had no control or knowledge of and
over which he could not exercise responsible charge.
Respondent failed to meet Engineer of Record obligations for delegation,
Rule 61G15-30.005, Florida Administrative Code, in that he failed to communicate in writing his intent that no delegated engineer existed at the time Respondent prepared performance specifications, thus violating Section 553.79(6)(c), Florida Statutes.
Respondent timely filed a request for a formal hearing to challenge Petitioner's allegations, and the matter was forwarded to the Division of Administrative Hearings (DOAH) on June 24, 2002, for assignment of an Administrative Law Judge and scheduling of a formal de novo hearing.
The Notice of Hearing, scheduling the final hearing for August 8, 2002, in St. Petersburg, Florida, and the Order of Pre-hearing Instructions were entered on July 9, 2002.
Petitioner's motion for continuance was granted by Order dated July 12, 2002, and the final hearing was rescheduled for September 4, 2002.
Respondent filed two motions to limit the expert testimony of Petitioner's expert, Rick Galvez, P.E. Respondent's first motion in limine was filed after review of Mr. Galvez's written opinion and deposition testimony, wherein Mr. Galvez based his testimony on his personal interpretation of Rules 61G15-30.002
and 61G15-30.005, Florida Administrative Code. The undersigned ruled that Mr. Galvez could not testify as an expert regarding his personal interpretation of administrative rules.1
As a result of the above ruling, Petitioner stated that Mr. Galvez would give limited testimony of how Respondent failed to meet the industry's standard of care. Petitioner's standard of care theory resulted in Respondent's second motion to limit the testimony of Mr. Galvez. At the onset of the hearing, the undersigned ruled that Mr. Galvez would be permitted to testify and give his opinions, based upon his experiences, of how he believes Respondent violated industry standards.
At the final hearing, Petitioner presented the testimony of one witness: Rick Galvez, P.E., employee of Schirmer Engineering Corporation, in Miami, Florida, as its fire protection engineering expert. Petitioner had one exhibit received in evidence. Respondent testified in his own behalf and presented the testimony of three witnesses: James M. Curtis, P.E., fire protection engineer for the Ballard Elementary School project; Frank B. Williams, P.E., fire protection engineer for the Samoset Elementary School project; and David Sessions, the general contractor for the Samoset Elementary School project. Respondent had ten exhibits received in evidence.
The two-volume hearing Transcript was filed on October 3, 2002, and proposed recommended orders were due on October 23, 2002. Petitioner's motion for an extension of time to file its proposed recommended order was granted extending the time for filing to November 18, 2002, thereby waiving the time requirement for this Recommended Order. The parties timely filed their respective Proposed Recommended Orders, and they have been considered by the undersigned.
After receipt of Mr. Newton's reply, the Board submitted documents relating to this process to Mr. Galvez for his review and expert opinion. Based upon the opinions of Mr. Galvez, Petitioner filed an Administrative Complaint alleging that:
Mr. Newton was negligent in his "delegation" to a non-engineering licensed specialty contractor the task of hiring a Florida registered wet sprinkler fire system engineer, who would design, sign and seal a wet sprinkler fire system document to be submitted to Mr. Newton for final approval.
FINDINGS OF FACT
Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received in evidence, the parties' stipulations of facts, and the entire record complied herein, the following relevant and material facts are found:
Petitioner is charged with regulating the practice of engineering. See Chapters 455 and 471, Florida Statutes.
Petitioner, in this case, is also charged with providing administrative, investigative, and prosecutorial services to the Board. See Section 471.038(3), Florida Statutes.
Respondent is and has been at all times material hereto a licensed professional engineer in the State of Florida. He was first licensed in Florida in 1984, and his license number is 35071. His areas of engineering discipline include mechanical, electrical, and chemical engineering. Based upon his qualification and knowledge in the discipline of chemical engineering, Mr. Newton routinely designed dry fire systems which are traditionally used in construction of school projects. Mr. Newton is also licensed in Georgia, South Carolina, Texas, and Louisiana. In the 18 years Mr. Newton has been licensed as a professional engineer, this proceeding is the only disciplinary action taken against his license.
Mr. Newton's professional affiliations include American Arbitration Association, where he acts as an arbitrator involving construction disputes.
Mr. Newton provides engineering and related services as principal engineer and president through Engineering Matrix, a St. Petersburg-based engineering company he formed in 1985. Engineering Matrix regularly employs approximately 30 persons, consisting of engineers and technical support staff. The number
of employees may increase up to 35 or more persons when business demands additional services.
Approximately 40 percent of Engineering Matrix's past and present work is education-related and/or school projects from elementary and middle schools up to and including the university level. At the time of this proceeding, Engineering Matrix had at least 10 to 15 school projects on their boards, about half of which are new schools, all located within the area of Sarasota, Manatee, and Pinellas Counties.
The Manatee County School Board (Owner) let for bid two elementary school construction projects. The Owner selected a Design Team consisting of architects, Allen Architects, Inc. (Allen Architects); a prime engineer, Engineering Matrix, Inc. (Engineering Matrix); and two construction managers, Creative Contractors for Ballard Elementary School and Willis A. Smith Construction, Inc., for Samoset Elementary School. Engineering Matrix, as the project's prime professional engineer, was responsible for all matters relating to electrical, mechanical, and fire protection engineering issues.
At some undetermined point in time during finalization of the design phase of the projects, the Owner changed from the original proposed dry fire system to a wet sprinkler fire system. The Owner's design change resulted in Respondent's proposal that Engineering Matrix, his company, could accommodate
the change for additional compensation over and above the contract price. The Owner rejected Respondent's proposal.
As the prime engineer for the projects, Mr. Newton prepared performance specifications for a non-engineering specialty contractor to hire an experienced wet sprinkler fire system engineer. At the time Mr. Newton prepared the performance specifications, the identification of the wet sprinkler fire system engineer was not known.
The performance specifications directed the wet sprinkler fire system engineer to design the wet sprinkler fire system documents. He would sign and seal the design documents and submit them to Mr. Newton for review and ultimate approval.
Two fire protection specialty contractors were hired.
James Curtis, P.E., was hired and designed the system for the Ballard Elementary School project. Frank B. Williams, P.E., was hired and designed the system for the Samoset Elementary School project. Each engineer signed, sealed, and submitted his respective designs to Mr. Newton for his review and approval.
Both approved wet sprinkler fire systems were permitted by Manatee County's building department, approved by the county's fire marshal's office, installed and thereafter passed inspection. There is no evidence of record that a complaint was made regarding the wet sprinkler fire systems installed on these two projects.
During or near the completion of the school wet sprinkler fire system construction, a disappointed bidder filed a complaint with the Board. As a result of the complaint, the Board mailed to Mr. Newton a letter of inquiry to which
Mr. Newton made a written reply.
Mr. Newton and Mr. Allen have worked together professionally on construction projects for over 15 years beginning in 1985. As a consequence, they have developed a comfortable and confident professional working relationship. Based upon their long relationship and their past successes, they will often seek the other's availability when projects are posted for bidding.
Allen Architects, by and through Mr. Allen, was in direct contract privy with the Owner, so also were the construction managers, Creative Contractors of Clearwater, Florida, for Ballard Elementary School and Willis A. Smith Construction, Inc., for Samoset Elementary School.
The Owner determined that a wet sprinkler fire system would be more economical than a dry fire system and directed Allen Architects to incorporate a design change. The original design plans included a dry fire system which Mr. Newton expected he would design as he had on other school projects.2
At this point in the design process, as the prime engineer and engineer of record for mechanical and electrical
matters, Mr. Newton prepared performance specifications requirements for approval of a wet sprinkler fire system engineer. This 12-page document included requirements that the system conform to Sections 13 and 14 of the National Fire Protection Association (NFPA) standards.3 Mr. Newton's testimony reflects his sincere and professional efforts to comply with the design change and with his understanding, past experience, and interpretation of the spirit of his professional obligations as prime engineer for the project.
Mr. Newton's performance specifications required that the specialty contractor provide a complete, approved wet sprinkler fire system, designed by a contractor who currently possessed five years of continuous experience, and that shop drawings, hydraulic calculations, etc., be signed and sealed by a Florida registered engineer and submitted to Mr. Newton for his final approval before construction.
In Section B of his performance specifications document, Mr. Newton included the following: "Pursuant to FS 471.033(2) and Rules 61G15-30 and 32, the Fire Protection Contractor shall be required to provide detailed fire protection construct drawings to be signed and sealed by a Florida Registered Fire Protection System Design Engineer acting as the delegated Engineer to the Prime Engineer as part of this scope."
This section of the performance specifications is the subject of the Board's Administrative Complaint.
In accordance with Mr. Newton's performance specifications, signed and sealed wet sprinkler fire system designs were prepared. One system was prepared by Creative Construction and one system was prepared by Willis A. Smith Construction, Inc. Both systems were submitted to Engineering Matrix, approved, and installed in Ballard and Samoset Elementary Schools.
Mr. Curtis and Mr. Williams, experienced professional engineers in wet sprinkler fire systems, testified without contradiction, that the language employed by Mr. Newton in Section B herein above regarding the wet sprinkler fire system specifications is common in the industry regarding construction and engineering practices in the local Manatee-Sarasota areas. Neither Mr. Curtis nor Mr. Williams experienced difficulty or confusion in understanding his engineering tasks.
The Board's expert, Mr. Galvez, found no deficiency in the wet sprinkler fire system engineering for either the Ballard Elementary School project or the Samoset Elementary School project. This fact confirms the reasonable assumption that two experienced engineers understood the written communication from Mr. Newton without the benefit of face-to-face communication
with him prior to their designing the wet sprinkler fire system for these two projects.
All witnesses agreed that there are three traditional and accepted industry methods engineers have used on projects:
the design approach in which the engineer of record prepares the plans and specifications, provides those documents to a contractor who prepares shop drawings that are then sent back to the engineer of record for compliance specification review and approval, and if approved, documents are provided to the construction engineer for installation; (2) the performance approach in which the engineer of record prepares a set of complete, clear and sufficient criteria and provides those criteria to a contractor who prepares shop drawings that are returned to the engineer of record for compliance specifications review and approval, and if approved, then returned for construction installation; and (3) the design-build approach in which a company, possessing a certification of authorization to provide engineering services via a contracted professional engineer, its employees/consultants, provides both design and installation of engineering projects for the company.
The witnesses further agree that none of the three approaches, however, are mandated by Florida Statutes or by administrative rule. Significant is the fact that the parties agree there are no reported cases that have held that an
engineer of record cannot delegate fire protection engineering design entirely to a fire protection engineer or fire protection engineering company. Equally as significant is the fact that the parties agree that no reported case has held that an engineer of record cannot delegate any entire subset of a project to another engineer licensed in the delegated subset area of engineering. The effect of this significance is that it compels the Board to establish an accepted, recognized, and enforceable industry standard and prove that Mr. Newton's conduct violated that standard.
Mr. Newton chose not to use the traditional design approach, the performance approach, or the design-build approach. He required the specialty contractor to seek and hire only a registered engineer, with specific experience in the engineering discipline of wet sprinkler fire systems. The selected engineer was required to design a wet sprinkler fire system. Mr. Newton's method of delegating the engineering responsibility to design a wet sprinkler fire system for his approval as the prime engineer resulted in a wet sprinkler fire system that was completed, installed, inspected, and found without fault at both the Ballard and the Samoset Elementary School projects.
From design to completion, Mr. Newton was the prime engineer for the projects. In that capacity, Mr. Newton had
responsible charge for the wet sprinkler fire system from its design to its installation. First, the design was required to be drafted only by an experienced wet sprinkler fire system engineer who would sign and seal his professional work product. Mr. Newton retained sole authority to review, suggest change, and, finally, approve the work product of the engineer of record prior to construction. The evidence of record reflects that at no time during the design to approval and construction process of these two projects was Mr. Newton not in responsible charge for the wet sprinkler fire system by maintaining final engineering authority.
Petitioner's expert, Mr. Galvez, a licensed engineer since 1983, has extensive experience in fire protection as an employee of a professional engineering company, Schirmer Engineering, in Miami, Florida, and his professional industry experience has been restricted to the South Florida area. He is a member of the National Fire Protection Association; the American Society of Heating, Refrigeration, and Air Conditioning; Society of Fire Protection Engineers; and the American Society of Mechanical Engineers. Mr. Galvez, however, is not certified by examination in the sub-discipline of fire protection engineering. He has never delegated a wet sprinkler fire system to another engineer, but has had the discipline continuously delegated to him by his employer.
In Mr. Galvez's opinion, Mr. Newton's written performance criteria to the specialty contractor to hire an experienced wet sprinkler fire system engineer to design, sign and seal plans did not provide enough direction in the field of delegated engineering because it was an improper delegation of engineering obligation and responsibility. Mr. Galvez opined that Mr. Newton improperly delegated the design responsibility to a non-engineering contractor. Second, in writing the performance specifications, Mr. Newton made himself the "single point of contact," a standard established by the National Society of Professional Engineers.
According to Mr. Galvez, following Mr. Newton's "single point of contact" position as a result of writing the performance specifications, the moment Mr. Newton inserted the non-engineering specialty contractor between himself and the design engineer in the performance specifications, he violated the National Society of Professional Engineers' "single point of contact" standard. Mr. Galvez's opinion, however, is nullified by his acknowledgment and admission that the "single point of contact" standard enacted by the National Society of Professional Engineers does not govern Mr. Newton's professional engineering conduct in Florida.
Mr. Galvez's second opinion of a "delusional standard"4 violated by Mr. Newton suffers a similar fate as his first
"single point of contact" opinion standard. Mr. Galvez further opined that the method employed by Mr. Newton, delegation from himself to (1) a contractor, (2) who would hire an engineer to design, sign and seal, and (3) return to the contractor to (4) return to Newton for his review and approval, was a "delusional" delegation of the "single point of contact" engineering responsibility of the prime engineer of record for these projects. Again, Mr. Galvez's standard of "delusional" delegation is not found in the Florida Statutes nor in the Florida Administrative Code nor has it been accepted, adopted, and reported as an engineering standard by a Florida court. The record contains no evidence of any recognized professional engineering organization in Florida that recognized a standard of "delusional" delegation by a professional engineer. There was no evidence presented at the hearing which would suggest Mr. Newton acted on a false belief, in spite of invalidating evidence to the contrary in drafting the performance specifications.
Viewed most favorably, the Board, by the presentation of the opinion testimony of Mr. Galvez regarding "standards" for the delegation of engineering design responsibilities from one engineer to another engineer, has failed to establish by clear and convincing evidence that Mr. Newton was guilty of negligence as alleged by the Board.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes. (All references to Sections are to the Florida Statutes (2000). All references to Rules are to the Florida Administrative Code (2000).)
Disciplinary licensing proceeding are penal in nature.
State ex rel. Vining v. Florida Board of Real Estate Commission,
281 So. 2d 487 (Fla. 1973). Part and parcel of the penal nature of the proceeding is the requirement that language giving rise to the discipline be strictly construed against the Board.
In Ocampa v. Department of Health, 806 So. 2d 633, at 634-35 (Fla. 1st DCA 2002), the Court held:
This Court has generally adopted a narrow reading of professional disciplinary statutes, noting that disciplinary statutes are penal in nature and must be strictly construed, with any ambiguity interpreted in favor of the licensee. See, e.g., Elmariah v. Department of Professional Regulations, 574 So. 2d 164 (Fla. 1st DCA 1990).
Although the court there was speaking specifically about construction of the statutes, this sound analysis applies to disciplinary rules as well.
In disciplinary license proceedings, Petitioner has the burden of proof and must prove the allegations made in the
Administrative Complaint by clear and convincing evidence. Department of Banking and Finance, Division of Securities and
Investors Protection v. Osborne Stern & Company, 670 So. 2d 932 (Fla. 1996).
Pursuant to Section 471.033(3), Florida Statutes, the Board is empowered to revoke, suspend, or otherwise discipline the license of a professional engineer for engaging in negligence in the practice of engineering as provided in Section 471.033(1)(g), Florida Statutes, which states in pertinent part:
The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:
* * *
(g) Engaging in . . . negligence . . . in the practice of engineering.
Rule 61G15-19.001(4), Florida Administrative Code, provides in pertinent part:
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.
Failure to comply with the procedures set forth in the Responsibility Rules as adopted by the Board of Professional Engineers shall be considered as non-compliance with this section unless the deviation or departures therefrom are justified by the specific circumstances of the project in question and the sound professional judgment of the professional engineer.[5]
Rule 61G15-30.002, Florida Administrative Code, provides the following definitions:
Engineer of Record. A Florida professional engineer who is in responsible charge for the preparation, signing, dating, sealing and issuing of any engineering document(s) for any engineering service or creative work.
Prime Professional. A Florida professional engineer, or a duly qualified engineering corporation or partnership, who is engaged by the client to provide any planning, design, coordination, arrangement and permitting for the project and for construction observations in connection with any engineering project, service or creative work. The prime professional engineer may also be an engineer of record on the same project.
Delegated Engineer. A Florida professional engineer who undertakes a specialty service and provides services or creative work (delegated engineering document) regarding a portion of the engineering project. The delegated engineer is the engineer of record for that portion of the engineering project. A delegated engineer usually falls into one of the following categories:
An independent consultant.
An employee or officer of an entity supplying components to a fabricator or
contractor, so long as the engineer acts as an independent consultant or through a duly qualified engineering corporation.
An employee or officer of a fabricator or contractor, so long as the engineer acts as an independent consultant or through a duly qualified engineering corporation.
Engineering Documents. Engineering documents are designs, plans specifications, drawings, prints, reports, or similar instruments of service in connection with engineering services or creative work that have been prepared and issued by the professional engineer or under his responsible supervision, direction or control.
Delegated Engineering Documents. Delegated engineering documents are those engineering documents that are prepared by a delegated engineer.
Public Record. An engineering document is "filed for public record" when said document is presented with the engineer of record's knowledge and consent to any federal, state, county, district, authority, municipal or other governmental agency in connection with the transaction of official business with said agency.
Rule 61G15-30.005, Florida Administrative Code, provides, in pertinent part that:
An engineer of record who delegates a portion of his responsibility to a delegated engineer is obligated to communicate in writing his engineering requirements to the delegated engineer.
An engineer of record who delegates a portion of his design responsibility to a delegated engineer shall require submission
of delegated engineering documents prepared by the delegated engineer and shall review those documents for compliance with his written engineering requirements and to confirm the following:
That the delegated engineering documents have been prepared by an engineer.
That the delegated engineering documents of the delegated engineer conform with the intent of the engineer of record and meet the written criteria.
That the effect of the delegated engineer's work on the overall project generally conforms with the intent of the engineer of record.
Rule 61G15-30.006, Florida Administrative Code, provides in pertinent part that:
The delegated engineering document shall comply with the written engineering requirements received from the engineer of record. They shall include the project identification and the criteria used as a basis for its preparation. If a delegated engineer determines there are details, features or unanticipated project limits which conflict with the written engineering requirements provided by the engineer of record, the delegated engineer shall timely contact the engineer of record for resolution of conflicts.
The delegated engineer shall forward the delegated engineering document to the engineer of record for review. All final delegated engineering documents require the impressed seal and signature of the delegated engineer and include:
Drawings introducing engineering input such as defining the configuration or structural capacity of structural components
and/or their assembly into structural systems.
Calculations.
Computer printouts which are an acceptable substitute for manual calculations provided they are accompanied by sufficient design assumptions and identified input and output information to permit their proper evaluation. Such information shall bear the impressed seal and signature of the delegated engineer as an indication that said engineer has accepted responsibility for the results.
Rule 61G15-30.007, Florida Administrative Code, provides that:
It is the responsibility of the prime professional engineer to retain and coordinate the services of such other professionals as needed to complete the services contracted for the project.
In the case at bar, the crux of the Administrative Complaint is the method employed by Mr. Newton in delegating the wet sprinkler fire system design to the professional charge of an engineer experienced in wet sprinkler fire system design. Mr. Newton chose to use a specialty contractor with explicit instructions to retain the services of an experienced professional engineer. In doing so, Mr. Newton did not violate his professional responsibilities under the statutes or administrative rules cited by the Board.
As the prime engineer for the project, there is no point in the process that Mr. Newton was not professionally
responsible for the resulting engineering design product. No rule or standard cited by the Board required Mr. Newton, as prime engineer for the owner or delegating engineer of the wet sprinkler fire system, to know the identity of the engineer to be selected before the selection was made. No cited rule or standard required Mr. Newton to provide detailed written instructions for the benefit of an engineer experienced in wet sprinkler fire system engineering. The engineer who accepted the delegation to design the wet sprinkler fire system, understood and if not, was afforded the opportunity during review to consult with Mr. Newton.
Respondent sought to prove that Mr. Newton's conduct was below and/or in violation of a professional engineering "standard" of care. The requirements are specific for proof of such allegation. Applicable to the case at bar is the ruling of Administrative Law Judge Jeff Clark, in Board of Medicine v. Deal, DOAH Case No. 01-4923PL, where Judge Clark held:
29. Where the licensee is charged with a violation of professional conduct and the specific acts or conduct required of the professional are explicitly set forth in the statute or valid rule promulgated pursuant thereto, the burden on the agency is to show a deviation from the statutory-required acts; but where the agency charges negligent violation of general standards of professional conduct, i.e., the negligent failure to exercise the degree of care reasonably expected of a professional, the agency must present expert testimony that
proves the required professional conduct, as well as the deviation therefore. Purvis v. Department of Professional Regulation, 461 So. 2d 134 (Fla. 1st DCA 1984).
In this case, the Board's expert was unable to identify a professional standard recognized by the industry in Florida that was violated by Mr. Newton when he drafted specifications for a specialty contractor to hire an experienced wet sprinkler fire system engineer who would design a wet sprinkler fire system.
The Board has failed to prove by clear and convincing evidence that Respondent, Stanley P. Newton, P.E., is guilty of negligence in the practice of engineering as alleged in the Administrative Complaint filed in this cause.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED that the Board of Professional Engineers enter a final order finding Respondent, Stanley P. Newton, P.E., not guilty of negligence in the practice of engineering as alleged in the Administrative Complaint filed in this cause.
DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida.
FRED L. BUCKINE
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 20th day of December, 2002.
ENDNOTES
1/ The parties were afforded an opportunity to proffer for the record, at the conclusion of the final hearing, the testimony excluded by the undersigned's rulings.
2/ The fire alarm systems installed in schools by Engineering Matrix over the past 15 years were the "dry fire alarm" system and that system was apparently included in Engineering Matrix's consideration for bidding on this project. Using the "dry fire alarm system" requires the engineer's consideration of a combination of items including smoke and fire dampers, fire alarms, pressurization and smoke control. However, installing a "wet fire system" requires a different analysis and use of different materials. The "wet fire system" has developed in the past 15 to 20 years and many professional engineers, through experience, education, and special training, have acquired expertise in this narrow discipline that enables them to economize input and maximize profit as professional engineers.
3/ The National Fire Protection Association establishes the minimum standards regarding specific matters/materials relating to and to be used in the design and installation of a wet sprinkler fire system by professional engineers. In the case at bar, the National Fire Protection Association's Sections 13
and 14 are only two sections referred to by Mr. Newton in his performance specifications.
4/ The term "delusional" is not a term of art nor is it contained in the Florida Statutes nor the Florida Administrative Code. Accordingly, it is being used in its normal definition of "the act or process of deluding; a false belief held in spite of invalidating evidence." American Heritage Dictionary, page 350.
5/ There is nothing in Chapter 471, Florida Statutes, nor in rules promulgated by the Board which indicates that an engineer, as prime engineer for a project, cannot engage a specialty contractor to hire and/or contract with an engineer to whom the prime engineer can delegate the design of an engineering project. Neither is there a statutory mandate that an engineer shall use one of the three traditional methods of doing so, i.e. design approach, performance approach, and the design-build approach.
COPIES FURNISHED:
Douglas Sunshine, Esquire
Florida Engineers Management Corporation 2507 Callaway Road, Suite 200
Tallahassee, Florida 32303
Eric B. Tilton, Esquire Tilton & Metzger, P.A. 1435 East Piedmont Drive Suite 210
Tallahassee, Florida 32308
Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and
Professional Regulation 2507 Callaway Road, Suite 200
Tallahassee, Florida 32303-5267
Hardy L. Roberts, III, General Counsel Department of Business and
Professional Regulation 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 exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 28, 2003 | Agency Final Order | |
| Dec. 20, 2002 | Recommended Order | Respondent charged with negligence for drafting performance specification to delegate design of wet fire sprinkler system to an engineer to be hired by a specialty contractor. |
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