STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ENGINEERS MANAGEMENT CORPORATION,

Petitioner,

vs.

HAROLD R. TUSSLER, P.E.,

Respondent.

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) Case No. 00-2616

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RECOMMENDED ORDER

The parties having been provided proper notice, Administrative Law Judge John G. Van Laningham of the Division of Administrative Hearings convened a formal hearing of this matter that began on January 10, 2001, in Fort Lauderdale, Florida, and was continued to, and completed on, January 12, 2001, by telephone conference call.

APPEARANCES

For Petitioner: Douglas Sunshine, Esquire

Florida Engineers Management Corporation 1208 Hays Street

Tallahassee, Florida 32301

For Respondent: Harold R. Tussler, P.E., pro se

1710 Avenida Del Sol

Boca Raton, Florida 33432 STATEMENT OF THE ISSUE

Whether Respondent Harold R. Tussler, P.E., should be disciplined for negligence in the practice of engineering and

for improper delegation of engineering responsibility as alleged specifically in the Administrative Complaint against him dated May 26, 2000.

PRELIMINARY STATEMENT

On May 26, 2000, Petitioner Florida Engineers Management Corporation (the "Corporation"), on behalf of the Florida Board of Professional Engineers, issued an Administrative Complaint against Respondent Harold R. Tussler, P.E. ("Tussler"), charging him with two counts of negligence in the practice of engineering and one count of improper delegation of engineering responsibility. Tussler timely requested a formal hearing, and on June 27, 2000, the Corporation referred the matter to the Division of Administrative Hearings for assignment to an administrative law judge.

The final hearing began as scheduled on January 10, 2001. Due to time constraints, and with the agreement of all parties, the proceeding was continued to, and completed by telephone conference call on, January 12, 2001. During its case, the Corporation called one witness, Carlos Garcia, P.E., who was accepted as an expert on the subject of fire protection engineering. Additionally, the Corporation introduced two exhibits into evidence. In his defense, Tussler himself took the stand, and he presented three non-party witnesses: Robert Formica, P.E., who was accepted as an expert in the area of fire

protection engineering; and Messrs. David Loupe and David Brockman, employees of a fire alarm company called EST Service. Tussler also offered four exhibits, which were received in evidence.

The parties were afforded the opportunity to submit exhibits after the hearing's conclusion, and each did so. The following late-filed Respondent's exhibits were admitted in evidence: a revised Delray Lincoln Mercury plan dated

August 18, 2000 (Respondent's Exhibit 5); certified copies of City of Delray Beach public records, namely, an Application Tracking Action Log, Fire Alarm System Description, and Report of Completion (Respondent's Composite Exhibit 6); and a copy of National Fire Prevention Association ("NFPA") 72, Paragraph 3-

1. (Respondent's Exhibit 7), of which official recognition was taken. At the Corporation's request, official recognition was taken as well of NFPA 101, Paragraph 7-6.2.3; NFPA 72, Paragraph 6-3.4; ASME1 Article A17.1, Rule 211.3; Rule 4A-47.010, Florida Administrative Code; and NFPA 101, Paragraph 7-6.3.4 (Petitioner's Exhibits 3-7, respectively).

   Each party filed a post-hearing submission, and the administrative law judge carefully considered these papers in the preparation of this Recommended Order.

   FINDINGS OF FACT

   
   

   The evidence presented at final hearing established the facts that follow.

   1. Tussler is a Florida-licensed mechanical engineer. His license number is FL19315.

   2. The Corporation is a Florida non-profit corporation organized to provide administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers (the "Board"). The Board is charged with regulating the practice of engineering.

   3. As engineer of record, Tussler signed and sealed plans for fire protection systems in two separate projects, namely, the Delray Lincoln Mercury project and the Townhouses of Highland Beach project.

      The Delray Lincoln Mercury Project

      
      

   4. In mid-1999, ADT Security Services, Inc. ("ADT") retained Tussler or his company, Design 4Engineering Inc., to prepare a fire alarm plan for the Delray Lincoln Mercury building located at 2102 South Federal Highway, Delray Beach, Florida. The building is a two-story commercial structure in which is located, over the second floor, a bi-level storage facility constructed of steel racks and catwalks.

   5. Tussler "roughed out" drawings for the plan and assigned the task of drafting it to a computer aided design

      ("CAD") operator, whom he supervised, directed, or controlled. According to Tussler, Tussler's expert witness, and the Corporation's expert witness, this is a standard and accepted practice in the engineering profession.

   6. Similarly, Tussler relied on ADT personnel to select the particular models of the various devices comprising the fire alarm system. All of the experts agreed that this is a standard and accepted practice in the engineering profession.

   7. Tussler signed and sealed the Delray Lincoln Mercury fire alarm plan on August 5, 1999.

   8. On August 9, 1999, to obtain the necessary permits, ADT submitted the plan to the local government having jurisdiction over the project, which was the City of Delray Beach (the "City").

   9. The City's Fire Department disapproved the plan as originally submitted and required that several changes be made.

   10. The plan was revised in accordance with the Fire Department's instructions. None of the modifications is material to this case.

   11. Tussler signed and sealed the revised plan on August 18, 1999; it was thereafter submitted to the City; and the Fire Department approved the revised plan on August 27, 1999.

   12. Because the plan that Tussler signed and sealed was prepared under his responsible supervision, direction, or control, he did not violate Section 471.033(1)(j), Florida Statutes.

   13. As designed and approved, the fire alarm system has one "pull station" on the first floor that allows an individual to initiate the alarm manually. Although this pull station is not situated near an exit, the building's sprinkler system will initiate the fire alarm automatically.

   14. By virtue of the automatic sprinkler system, the fire alarm plan that Tussler designed complies with the applicable codes and standards governing signal initiation.

   15. Accordingly, Tussler did not commit negligence in the practice of engineering in connection with the Delray Lincoln Mercury project.

       The Townhouses of Highland Beach

       
       

   16. In or around September 1999, the management company of a residential complex known as The Townhouses of Highland Beach Condominium, acting on behalf of the condominium owners, engaged a firm called EST Service ("EST") to install a new control panel in the fire alarm system serving one of the condominium's buildings.

   17. As EST learned, the condominium's existing fire alarm system had been in place for some time. The control panel

       recently had been damaged beyond repair, however, during routine servicing of the device by a contractor other than EST.

   18. The condominium owners made clear to EST their desire that the scope of the project be limited to replacement of the inoperative control panel. The owners hoped that the local government — the City of Delray Beach — would deem the planned panel "switch-out" a mere repair that could be accomplished under the "grandfather" principle without triggering an obligation to upgrade the system into compliance with current codes and standards, which would increase the project's cost substantially.

   19. The condominium owners' hope was not wholly without foundation in fact. Some municipalities do not require code upgrades when the only change being made to a fire alarm system is the replacement of a control panel. The Corporation's expert witness conceded that the replacement of one defective piece of equipment in an existing system does not necessarily entail the obligation to upgrade the entire system to meet current codes.

   20. Accepting this limited assignment, EST obtained from its customer a plan that showed the layout of the devices forming the condominium's existing fire alarm system. EST then retained Tussler (or his firm) to prepare an engineering plan depicting the existing system. EST explained to Tussler that

       its contract with the condominium owners called for a panel replacement only — not a full system upgrade.

   21. Tussler and EST informed the condominium owners that, in their opinion, the City's Fire Department almost certainly would reject a plan that provided for no improvements besides a panel replacement. The condominium owners continued to believe, however, that a relatively inexpensive panel replacement might satisfy the local authorities; they remained unwilling to pay for a system design incorporating code upgrades.

   22. Accordingly, EST personnel drew up an engineering plan that satisfied the customer's demand, and Tussler signed and sealed it on December 7, 1999.2 Tussler knew, when he affixed his seal, that the document described a system which did not comply with current codes and standards.

   23. Although Tussler and EST expected that the plan, without more, would be disapproved, they nevertheless hoped that the Fire Department might be willing presently to permit the panel replacement on the condition that additional code upgrades be performed in the future.

   24. The engineering plan that Tussler signed and sealed did not contain an explanation of the intended purposes for which it had been prepared; it did not note any elements for which Tussler disclaimed responsibility; nor did it identify any assumptions made or facts relied upon in developing the

       document. Tussler likewise failed to set forth, in the plan, any reasons for deviating from applicable codes and standards. Significantly, however, the Board did not charge Tussler with negligent failure to follow the Responsibility Rules that apparently require these or similar explanatory or revelatory notes.

   25. EST submitted the plan to the City's Fire Department, and it was rejected. The Fire Department notified EST that it would approve the plan only if the system's audible appliances (horns) complied with the current sound level requirements for signaling sleeping areas. See NFPA 72, Paragraph 6-3.4.

   26. Testing revealed that the old horns were not loud enough to meet the standard, but the condominium owners balked at the expense of adding new ones. Eventually EST and the condominium owners parted ways without any devices having been installed pursuant to the plan that Tussler signed and sealed on December 7, 1999.

   27. Tussler's plan failed to comply with the following codes and standards, for the reasons noted:3

       Code or Standard Plan Deficiency

       
       

       Rule 61G15-33.006,

       Florida Administrative Code No indication of either:

       1. conductor types and installation requirements (including rating identification and listing

          requirements); or (b) system riser diagram

          
          

          ASME Article A17.1,

          Rule 211.3a(4)(a) Failure to provide for automatic emergency elevator recall to designated level

          
          

          Rule 4A-47.010(1),

          Florida Administrative Code Failure to provide for

          automatic interruption of power to elevator prior to application of sprinkler water

          
          

          NFPA 72, Paragraph 7-6.3.4 Failure to provide for visual

          signals

          
          

          NFPA 72, Paragraph 6-3.4 Failure to satisfy sound

          level requirements for signaling sleeping areas

          
          

   28. At hearing, Tussler agreed that his plan deviated from the above-mentioned codes and standards. He also acknowledged that if he had designed a new fire alarm system, then his plan would have needed to comply with current codes, including those he is alleged to have disregarded negligently.

   29. Tussler explained, however, that the plan he issued was neither intended nor required to comply with these current codes and standards because he merely had diagramed a fire alarm system that, regardless whether he drew it or not, existed in fact. The uncontradicted evidence showed, moreover, that Tussler and his client EST considered and intended the document to be a "working tool" prepared for the limited purposes of seeking the Fire Department's approval to replace an inoperative

       control panel and, failing that, of persuading the condominium owners to authorize a plan for code upgrades to the system.4

   30. The Corporation did not adduce any evidence that Tussler's issuance of the engineering document in question breached a discernible standard of conduct under the specific

       circumstances of the project. To the point, the Corporation failed to show that a similarly-situated, reasonable engineer would not have signed and sealed a plan, as Tussler did, depicting an existing fire alarm system which is not in compliance with current codes, for the purpose of seeking approval from local authorities simply to replace a damaged device without upgrading the whole system.5

   31. Consequently, the Corporation failed to carry its burden to prove, by clear and convincing evidence, the specific charge of negligence brought against Tussler arising from the Townhouses of Highland Beach project.

       CONCLUSIONS OF LAW

       
       

   32. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

   33. Section 471.033(1)(g), Florida Statutes, authorizes the Board, on whose behalf the Corporation has prosecuted this matter pursuant to Section 471.038(3), to discipline an engineer proved guilty of negligence in the practice of engineering.

   34. Rule 61G15-19.001(4), Florida Administrative Code, defines the term "negligence," for the purposes of disciplinary proceedings, to mean "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." The rule further explains:

       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.

       
       

       Id.

       
       

   35. The Board also may punish an engineer for violating

       
       

       Section 471.033(1)(j), Florida Statutes, which prohibits a licensee from

       [a]ffixing or permitting to be affixed his or her seal, name, or digital signature to any final drawings, specifications, plans, reports, or documents that were not prepared by him or her or under his or her responsible supervision, direction, or control.

       
       

       See also Rule 61G15-19.001(6)(j), Florida Administrative Code.

   36. The foregoing statutory and rule provisions are 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).

   37. As the party asserting the affirmative of an issue, the Corporation has the burden on proof. Department of Transportation vs. J.W.C. Co., 396 So. 2d 778, 790 (Fla. 1st DCA 1981).

   38. For the Board to suspend or revoke an engineer's license, impose an administrative fine, issue a reprimand, or mete out any other penalty provided in Section 471.033(3), Florida Statutes, the Corporation must prove the charges by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987). Further, the grounds proven must be those specifically alleged in the administrative complaint. See, e.g., Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372

       (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

   39. In Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla.

       
       

       4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a "workable definition of clear and convincing evidence" and found that of necessity such a

       definition would need to contain "both qualitative and quantitative standards." The court held that

       clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue. 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 allegations sought to be established.

       
       

       Id. The Florida Supreme Court later adopted the fourth

       
       

       district's description of the clear and convincing evidence standard of proof. Inquiry Concerning a Judge No. 93-62, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive

       comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Brothers, Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev.

       denied, 599 So. 2d 1279 (1992)(citation omitted).

       
       

   40. In the Administrative Complaint against Tussler, the Corporation alleged, in Count One, that the plan for the Delray Lincoln Mercury project failed to "specify pull stations in the 1st floor exit or the 2nd, 3rd, or 4th floor stair exit." The Corporation contends that Tussler committed negligence in the

       practice of engineering by signing and sealing this plan. In Count Two, the Corporation alleged that the plan for the Townhouses of Highland Beach project was plagued by a plethora of deficiencies, described as follows:

       1. The drawings fail to describe installation or performance requirements.

       2. [Tussler] has failed to indicate a system riser diagram or conductor type or installation requirements.

       3. [Tussler] has failed to indicate any model catalog numbers or performance requirements in the drawing legend.

       4. The legend on all three sheets has an identical note stating that "Fire alarm devices shall be compatible with existing fire alarm panel." [Tussler] has failed to provide for an upgrade to this panel depending on the number of devices that are being added.

       5. There is no indication of the elevator being recalled.

       6. The plans indicate tamper switches for a sprinkler system but fail to indicate that the elevator power will be shut down if the sprinklers are installed.

       7. The center exit stair does not have the required pull station.

       8. No visual devices are indicated.

       9. The system design as shown on the plans does not indicate any means to provide audible alarm inside the individual units to attain 70dBA or 15 dBA above ambient noise.

       
       

       The Corporation charges Tussler with negligence for signing and sealing this plan. In the third and final count, the Corporation accused Tussler of violating of Section 471.033(1)(j), Florida Statutes, based on the allegation that he improperly had delegated engineering responsibility to ADT

       personnel in connection with the Delray Lincoln Mercury project, allowing them to choose "specific model numbers for the fire alarm system and [add] the model numbers to the drawings."

   41. Whether Tussler committed negligence in the practice of engineering or other misconduct, as charged, is a question of ultimate fact to be decided in the context of each alleged violation. Pillsbury v. State Department of Health and Rehabilitative Services, 744 So. 2d 1040, 1042 (Fla. 2d DCA 1999); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA

       1995).

       
       

   42. As set forth in the Findings of Fact above, the trier has determined as matter of ultimate fact that Tussler is not guilty of the specific grounds for discipline of which he was accused in the Administrative Complaint. Simply put, the evidence that the Corporation presented was insufficient to prove, clearly and convincingly, that Tussler had committed the particular acts of negligence alleged, or that he had improperly delegated engineering responsibility to ADT employees.

   43. These factual findings, however, were necessarily informed by the administrative law judge's application of the law. A brief discussion of the pertinent legal principles, therefore, will illuminate the dispositive findings of ultimate fact.

       Count One (Negligence)

       
       

   44. Rule 61G15-32.008(2), Florida Administrative Code, mandates that an engineer use "applicable NFPA standards, when available, or alternative engineering sources and good engineering practice when required," in designing a fire alarm system. The same rule requires as well that the design comply the provisions of Rule 61G-33.006.6

   45. The Corporation maintains that the alarm system which Tussler designed for Delray Lincoln Mercury does not comply with NFPA 101, National Life Safety Code, Paragraph 7-6.2.3. Tussler takes the position that this paragraph is inapplicable. He is correct.

   46. These are the pertinent provisions of the Code:

       
       

       7-6.2.1 Where required by other sections of this Code, actuation of the protective signaling and control system shall occur by any or all of the following means of initiation, but shall not be limited thereto

       1. Manual fire alarm initiation.

       2. Automatic detection.

       3. Extinguishing system operation.

          
          

          * * *

          
          

          7-6.2.3 A manual fire alarm station shall be provided in the natural exit access path near each required exit from an area unless modified by another section of this Code.

          
          

          * * *

          
          

          7-6.2.5 For fire alarm systems utilizing automatic fire detection or waterflow detection devices, at least one manual fire

          alarm station shall be provided to initiate a fire alarm signal. This manual fire alarm station shall be located where required by the authority having jurisdiction.

          
          

          (Emphasis added).

          
          

   47. NFPA 101, Paragraph 7-6.2.3, prescribes both the number ( = number of exits) and location (near each exit) of manual fire alarm stations. It is, however, expressly subordinate to other Code sections, in consequence of the "unless modified" clause.

   48. NFPA 101, Paragraph 7-6.2.5, plainly modifies Paragraph 7-6.2.3 both as to the number (at least one) and location (selected by local authorities) of required manual pull stations. Thus, when it applies, Paragraph 7-6.2.5 takes precedence over Paragraph 7-6.2.3.7

   49. Here, the undisputed evidence showed that the sprinkler system which is an integral part of the Delray Lincoln Mercury project constitutes an automatic fire detection or waterflow detection device within contemplation of Paragraph 7-

       6.2.5. Consequently, Paragraph 7-6.2.3 must defer to Paragraph 7-6.2.5.

   50. The evidence showed further, unambiguously and without conflict, that Tussler's design called for at least one pull station, and that this pull station was placed at the location required by the local authority having jurisdiction (as

       manifested by the Fire Department's approval of the plan). Therefore, the plan complied with Paragraph 7-6.2.5.

   51. In sum, on this record no negligence on Tussler's part in respect of the number and location of pull stations in the Delray Lincoln Mercury building has been established clearly and

       convincingly.

       
       

       Count Two (Negligence)

       
       

   52. Under Rule 61G-19.001(4), Florida Administrative Code, an engineer's failure to comply with the Board's Responsibility Rules constitutes a basis for discipline "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." Further, the rule imposes an affirmative duty to approve and seal only documents that conform to "acceptable engineering standards" and protect the public from harm. Taken together, these prescriptions make clear that the sealing of a plan which does not follow the codes and standards incorporated in the Responsibility Rules, without justification, is an act of disciplinary negligence.

   53. In this case, there is no dispute that Tussler issued a plan which did not comply with a number of codes and standards that the Responsibility Rules require be followed. See Paragraph 27, supra. Hence, the real question here is not

       whether the plan for the Townhouses of Highland Beach project deviated from applicable codes and standards (clearly it did) but rather whether the departures were justified under the circumstances and by Tussler's sound professional judgment.

   54. Whether a deviation was justified by the specific circumstances of a project is a fact issue that must be decided in accordance with general standards of professional conduct, as established by expert testimony. See McDonald v. Department of Professional Regulation, Board of Pilot Commissioners, 582 So.

       2d 660, 670 (Fla. 1st DCA 1991)(Zehmer, J., concurring)(agency must present expert testimony on required professional conduct to sustain charge of negligent failure to exercise degree of care reasonably expected of professional); Purvis v. Department

       of Professional Regulation, 461 So. 2d 134, 136 (Fla. 1st DCA 1984).

   55. At hearing, Tussler explained why, in his professional judgment, the specific circumstances of the Townhouses of Highland Beach project justified his decision to seal a document that deviated from applicable codes and standards. See Paragraph 29, supra. Tussler's position is plausible and finds some support in the Responsibility Rules. For example, Rule 61G15-30.003, Florida Administrative Code, provides:

       Engineering documents which are issued for preliminary or conceptual use, shall clearly note the intended purpose of such documents.

       When elements of the project are shown on an engineering document only for information or clarification and the Engineer does not intend to accept responsibility for the elements, the engineer shall clearly note on the documents the extent of his responsibility.

       
       

       (Emphasis added); see also Rule 61G15-32.003(4)("When applicable

       
       

       codes and standards are not available or applicable, and said documents are based on engineering judgment, which constitutes a deviation from applicable codes and standards, any reasons and assumptions made to develop the fire protection concept shall be identified on the documents.");8 Rule 61G15-30.004 (governing preliminary engineering documents prepared for public agency review and comment).

   56. Moreover, the Corporation failed to present any evidence in rebuttal of Tussler's explanatory testimony. Its expert witness offered no opinion as to whether a reasonable engineer, exercising the degree of care reasonably expected of a professional under the specific circumstances of the Townhouses of Highland Beach project, would have issued a plan that deviated from applicable codes and standards in a manner similar to Tussler's document.9 Absent such proof, the trier is bereft of an acceptable measure by which to judge Tussler's expressed justification for having deviated from the applicable codes and standards. As a result, there is no basis in the evidence of record to second-guess him.

   57. In stark contrast to his testimony regarding the grounds for deviating from applicable fire alarm design requirements, Tussler offered no persuasive explanation or justification for his failure to identify, on the plan itself, the intended purposes of the document and the reasons for its non-compliance with codes and standards that ordinarily would need to be satisfied. Not only do the Responsibility Rules seem clearly to require these disclosures, but also the Corporation's expert alluded to this responsibility. See Transcript at 46

       ("[Y]ou make a statement saying what the . . . intent of the drawings are [sic].").

   58. Tussler, however, was charged with negligent (i.e. unjustifiable) departures from codes and standards governing fire alarm system design — not with negligent failure properly to disclose adequate justification for acceptable departures from such codes and standards.10 These, clearly, are separate and distinct negligent acts, the former being the more serious of the two. Tussler cannot be disciplined on the latter ground, having received no advance notice of it.

   59. Based on the evidence presented, the trier of fact was not able to form a firm belief or conviction that Tussler's admitted departures from applicable codes and standards were not justified both by the specific circumstances of the project in question and his sound professional judgment. Thus, the offense

       charged in Count Two was not established by clear and convincing

       
       

       evidence.

       
       

       Count Three

       
       

   60. On the charge of improper delegation, the Corporation produced no evidence that Tussler had failed to exercise "responsible supervision, direction, or control" over the preparation of the plan for the Delray Lincoln Mercury project. To the contrary, the testimony of Tussler and his expert, as well as that of the Corporation's expert, refuted the accusation. Therefore, the alleged violation of Section 471.033(1)(j), Florida Statutes, was not established by clear and convincing evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order dismissing the Administrative Complaint against Tussler in this matter.

DONE AND ENTERED this 2nd day of March, 2001, in

Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

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 2nd day of March, 2001.

ENDNOTES

1/ ASME is an acronym for American Society of Mechanical Engineers.

2/ The Corporation did not charge Tussler with improper delegation of professional responsibility in connection with the Townhouses of Highland Beach project.

3/ The Corporation's descriptions of the alleged deficiencies, as set forth in the Administrative Complaint, are quoted verbatim at Paragraph 40, infra. To the extent the allegations differ from the findings in the text above, the evidence was insufficient to sustain the allegations clearly and convincingly.

4/ The two employees of EST who testified at hearing, David Loupe and David Brockman, corroborated Tussler's testimony concerning the purposes of the plan.

5/ Tussler's apparent non-compliance with Responsibility Rules that seemingly require an engineer to disclose, on the face of the plan document, the intended purposes of, or the circumstances justifying, a project design that deviates from applicable codes and standards constitutes a separate and independent act of possible negligence for which the Corporation inexplicably has not sought to discipline Tussler.

6/ Rule 61G-33.006, Florida Administrative Code, provides:

1. Alarm systems are used to monitor and alarm a fire or other emergency condition. Items to be included in the design or analysis of these systems are: structure alarm requirements, location and audibility, types of alarms and initiation devices, notification requirements, installation requirements, backup power requirements, applicable regulatory requirements, and the provisions of rule 61G15-32.007, F.A.C.

2. Design documents for alarm systems shall, at a minimum, indicate the following:

1. System riser diagram

2. Device types and locations

3. Type of conductors and installation requirements including rating identification and listing requirements

4. Notification requirements

5. Backup power requirements

6. Where applicable, backup power sources and inter-ties to other systems/components.

7/ In its proposed recommended order, at page 8, the Corporation argues, without citation to authority, that the "exception" provided for in Paragraph 7-6.2.5 "does not apply to [Paragraph] 7-6.2.3" but rather "applies to and modifies only [Paragraph] 7- 6.2.1." This contention is not persuasive. Paragraph 7-6.2.5 is in harmony with, and effects no modification of, Paragraph 7- 6.2.1, the latter being a general provision that is silent as to the number and location of required devices. In contrast, Paragraph 7-6.2.5 is clearly at odds with Paragraph 7-6.2.3, requiring fewer pull stations (when there are two or more exits) and delegating to local officials the discretion to dictate the location thereof. The Corporation's argument fails to account for these palpable features of the Code. Further, the Corporation's position would compel the conclusion that Paragraph 7-6.2.5 imposes an additional requirement on systems incorporating automatic detection and signal initiation devices. Nothing in the plain language of Paragraph 7-6.2.5 remotely suggests such an anomalous result, however, and the "unless modified" clause of Paragraph 7-6.2.3 renders it untenable.

8/ Rule 61G15-32.003(4), Florida Administrative Code, is so poorly drafted as to be nearly nonsensical. A code or standard cannot be both applicable and "not available or applicable," as the rule illogically appears to require. Thus, the phrase "not available or applicable" should be construed to describe a code or standard that normally would apply but, for reasons particular to a project, either cannot be, need not be, or should not be followed. (In further support of this construction, consider that an engineer has no reason to follow an inapplicable code or standard, and presumably could not follow an "unavailable" one even if he were so inclined. The rule cannot reasonably be understood to require that engineers identify inapplicable or unavailable codes and standards on their documents.) Given a reasonable interpretation, the rule confirms that an engineer, in the exercise of independent engineering judgment, may deviate from applicable codes and standards, provided he identifies the reasons for, and assumptions made in, doing so on the document.

9/ Tellingly, the Corporation's entire argument in opposition to Tussler's justification is this one-sentence ipse dixit: "[Tussler's] explanation with regard to the Townhouses of Highland Beach, that the plans were submitted knowing that they would be rejected and would not meet Code does not excuse his responsibility as a professional engineer to comply with the laws and rules governing the design of alarm systems." Pet.

Prop. Rec. Order at 9.

10/ The Corporation did not argue either at hearing or in its proposed recommended order that Tussler should be disciplined for negligent non-disclosure. Rather, the Corporation insisted that Tussler's justification was inadequate. See endnote 9.

Under the Corporation's theory, which simply presupposed lack of justification, the undisputed fact that Tussler's plan deviated from applicable codes and standards was sufficient without more to establish the charge of negligence. See Pet. Prop. Rec.

Order at 9.

COPIES FURNISHED:

Natalie A. Lowe, Executive Director Florida Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301

Douglas Sunshine, Esquire

Florida Engineers Management Corporation 1208 Hays Street

Tallahassee, Florida 32301

Harold R. Tussler 1710 Avenida Del Sol

Boca Raton, Florida 33432

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.

Docket for Case No: 00-002616

Orders for Case No: 00-002616