Findings Of Fact At all times material to this proceeding, Respondent, James A. Tipton ("Tipton"), has been a registered professional engineer in the State of Florida, having been issued license number PE 0018147, which expires on January 31, 1987. Tipton employed the services of Robert Corno as a field man for taking samples to establish soil profiles, site characteristics and existing water tables for septic tank applications prepared and filed by Tipton. Corno had actual authority from Tipton to conduct tests, site examinations and evaluations and to submit his findings to Tipton. Sometime before April 8, 1985, Tipton was retained to perform professional engineering services in connection with the preparation and filing of an application for a septic tank on lot 168, block 3, Charlotte Ranchettes Subdivision in Charlotte County ("lot 168"), owned by Joseph Duseo. Tipton sent Corno to lot 168 on April 13, 1985, to examine and evaluate the site, take soil samples and make other observations that would have to be reported to Tipton in connection with Tipton's work. Corno completed his work and reported to Tipton. Corno did not bring Tipton the actual soil samples. On April 8, 1985, Duseo's general contractor told Corno about a well on lot 168. When Corno visited the site, he observed the well. The well is an artesian well, about 3 feet high and six inches in diameter. The well is an irrigation-type well and is non-potable. The well was within fifty feet of the drain field of the septic system Tipton proposed for lot 168. The well also is approximately 5 to 10 feet from the north property line. Corno knew at the time of his visit to the site that the well was not plugged. However, Corno understood that Duseo was in the process of arranging with the Southwest Florida Water Management District to have the well plugged. Corno did not tell Tipton about the well before Tipton prepared and filed the application for the proposed septic tank. Therefore, Tipton did not know there was a well on lot 168 when he was preparing the application for the septic tank permit. Tipton did not ask Corno any questions calculated to reveal whether there was a well on lot 168. Corno held the belief that non-potable wells, especially those that were to be plugged, did not have to be shown on septic tank permit applications. There was evidence about a survey of lot 168 certified by a land surveyor employed by a firm of professional engineers which did not show any well on lot 168. However, Tipton did not have access to the survey before he prepared the septic tank permit application on lot 168. (The survey bears two dates, April 17 and April 18, and was not signed until April 25, 1985.) On or about April 15, 1985, Tipton signed and certified the septic tank permit application for lot 168. The application was filed at the Charlotte County Public Health Unit (Health Department) on April 16, 1985. The application indicates "none" in the space provided to indicate the "location of wells within 75 feet of property lines." The well on lot 168 is an important consideration which should have been depicted on the application. Septic tank drain fields could pollute a well. Even if Tipton had known that the well was supposed to be plugged, it was not plugged until July 1985. Failure to show the well was a serious omission. Tipton was negligent for relying on Corno without having an understanding whether Corno would report to him the existence of non-potable wells within 50 feet of the drain field of a septic system or within 75 feet of a property line if the well was likely to be plugged. If he had used due care, Tipton would have either made explicit inquiry of Corno sufficient to reveal the existence of the well or ascertained from Corno in advance that he would report to Tipton the existence of any well within 50 feet of the drain field of a proposed septic system or within 75 feet of property lines. Having failed to exercise due care, Tipton did not realize that Corno would not be reporting to him the existence of a non-potable well which was supposed to be plugged in the future. A few days after he filed the application, Tipton learned about the well on lot 168. But at about the same time, Duseo and his contractor began discussing construction alternatives that would change the septic system and require a new septic tank application. Therefore, Tipton did not immediately amend the April 15 application to show the well. In mid-May, Tipton filed a new application for the different septic system. The new application, not in issue in this case, showed the well. The application also contained a soil profile which probably is not accurate. However, Tipton's soil profile simply reflects the information reported to him by Corno. While Tipton's soil profile does not correspond with soil profiles from other test holes dug in the area of the proposed drain field by the Health Department and an expert witness, the information Corno reported to Tipton was well within the realm of possibilities for soil in the area of lot 168. Corno generally seemed to be a qualified and experienced field man who used proper tools to do his job. There was nothing suspicious about Corno's information, and there was no reason for Tipton to suspect that it was false or fraudulent. While it is the better practice for a professional engineer to require his field man to deliver the actual soil sample to support a soil profile report, this is not required of professional engineers if there is no reason to suspect that a field man's soil profile report is false or fraudulent. On the application, Tipton estimated the high water table on lot 168 at 2.2 feet below existing grade. While other expert witnesses estimated a higher high water table, the evidence did not prove that Tipton was negligent in his estimate. Some of the conflicting estimates were Health Department estimates which, the evidence indicates, tend to be high to be on the safe side. Others were estimates on permit applications which may have been influenced by the Health Department's desires and which may not reflect the engineers' actual estimates. Of all the estimates, only Tipton's was supported by testimony how the estimate was derived. (Tipton used what he called Darcy's Law.) Finally, Petitioner's own expert witness testified that Tipton's high water table estimate could not be called negligent.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Professional Engineers enter a final order holding Respondent, James A. Tipton, guilty of negligence in the practice of engineering under Count I of the Amended Administrative Complaint (but dismissing Count II of the Amended Administrative Complaint) and imposing an administrative fine in the amount of five hundred dollars ($500.00). RECOMMENDED this 19th day of May, 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Ms. Sarah Logan Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, FL 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Wings Slocum Benton, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John Charles Heekin, Esq. C-1 Ocean Plaza 21202 Ocean Blvd. Port Charlotte, FL 33952 APPENDIX The following are specific rulings on all the parties' proposed Findings of Fact as required by Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings of Fact Petitioner's Proposed Findings of Fact 1 through 3, 9, 10, 13 through 16, 19, 21 and 22 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Petitioner's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the last sentence is unnecessary. Petitioner's Proposed Finding Of Fact 5 would have been included in paragraph 1 above except that the third sentence is unnecessary. Petitioner's Proposed Findings Of Fact 17, 18 and 27 would have been included in paragraph 1 above except that they are unnecessary. Petitioner's Proposed Finding Of Fact 26 would have been included in paragraph 1 above except that whether Alligator Creek is a "significant" drainage feature would depend on the definition of "significant" which was not established by the evidence. In addition, Petitioner's Proposed Finding Of Fact 26 is unnecessary. Petitioner's Proposed Findings Of Fact 6 through 8 are rejected as conclusions of law and because the last sentence of Proposed Finding Of Fact 6 is cumulative. Petitioner's Proposed Finding Of Fact 11 is rejected because the first sentence is contrary to the greater weight of the evidence and Findings Of Fact and the second sentence is, subordinate to Findings Of Fact. Petitioner's Proposed Findings Of Fact 12, 20, 23 and 24 are rejected as subordinate to Findings Of Fact. Petitioner's Proposed Finding Of Fact 25 is rejected because the first sentence is subordinate to Findings Of Fact and the second sentence is contrary to the greater weight of the evidence. Rulings on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings Of Fact 1 through 3, 5 and 12 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Respondent's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the second sentence is unnecessary. Respondent's Proposed Finding Of Fact 8 would have been included in paragraph 1 above except that it is unnecessary. Respondent's Proposed Finding Of Fact 9 would have been included in paragraph 1 above except that it is in part unnecessary. Respondent's Proposed Finding Of Fact 11 would have been included in paragraph 1 above except that it is contrary to the greater weight of the evidence and Findings Of Fact that there is "no way" for an engineer to avoid relying on a field man's error such as Corno's error in omitting to report the existence of the well. Respondent's Proposed Finding Of Fact 14 would have been included in paragraph 1 above except that it is irrelevant. Respondent's Proposed Finding Of Fact 6 is rejected because it is subordinate to Findings Of Fact and is unnecessary. Respondent's Proposed Finding Of Fact 7 is rejected because it is simply a recitation of conflicting evidence, some of which is accepted but some of which is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, it was found that Corno did not tell Tipton about the well and that Tipton did not have the survey in his possession at the time the application was filed. Respondent's Proposed Finding Of Fact 10 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, the evidence supported a finding of negligence on the part of Tipton for failure to utilize due care and to have due regard for acceptable standards of engineering principles whether or not practicing in Charlotte County. In addition, Mr. Murray's expert testimony must be disregarded because it was given upon a hypothetical assumption that an engineer had possession of a sealed survey showing no improvements on the property as the time of the application, a fact not proved by the evidence. Respondent's Proposed Finding Of Fact 13 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, personnel in the Health Department, part of the "general public," were misled. (The general public also reasonably could have been led to a fallacious conclusion, but there was no "misconduct" on Tipton's part. See Conclusions of Law.) ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PROFESSIONAL ENGINEERS DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA BOARD OF PROFESSIONAL ENGINEERS Petitioner, vs. DOAH CASE NO. 85-2684 DPR CASE NO.0058289 JAMES A. TIPTON, Respondent. /
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.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a professional engineer in the State of Florida, holding license number 0857461. 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. 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 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. 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. 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. 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. 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. 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. 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. 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 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. 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. 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. 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. 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. 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. 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/ 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. 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: 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. Said plans were negligent in that they contained pipe lengths which were insufficient. Based on the foregoing, Respondent violated Section 471.033(1)(g), Florida Statutes, by displaying negligence in the practice of engineering. 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. 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. 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.
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.
The Issue The issue is whether Palm Beach County's application for a permit to construct a domestic wastewater collection/transmission system in Palm Beach County should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parties The County is a political subdivision of the State of Florida and is the permittee in this matter. The County Water Utilities Department currently serves approximately 425,000 persons, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. ITID is an independent water control special district created by special act of the legislature in 1957 and whose boundaries lie within the County. Portions of the transmission line to be constructed by the County will cross easements and roads, and pass under canals, owned by ITID. Petitioners Joseph Acqualotta, Michael D'Ordine, Ann Hawkins, and Lisa Lander all live in areas in close proximity to the proposed transmission line. Lander lives adjacent to the proposed route of the line along 40th Street North, while Acqualotta, D'Ordine, and Hawkins live adjacent to the proposed route along 140th Avenue North. Acqualotta, Hawkins (but not D'Ordine, who resides with Hawkins), and Lander own the property where they reside. Petitioners Troy and Tracey Lee (Case No. 05-2979), Lisa Gabler (Case No. 05- 2980), and Anthony and Veronica Daly (Case No. 05-2982) did not appear at the final hearing. The Department is an agency of the State of Florida authorized to administer the provisions of Part I of Chapter 403, Florida Statutes, and is the state agency charged with the responsibility of issuing domestic wastewater collection/ transmission permits under Section 403.087, Florida Statutes (2004).1 Background On December 15, 2004, the County filed its application with the Department for an individual permit to construct a domestic wastewater collection/transmission system (Transmission Line). The Transmission Line is one element of the County's Northern Region Utilities Improvement Project (Project) and will be approximately 41,050 feet long and comprised of approximately 32,350 linear feet of 20-inch force main and 18,700 linear feet of 30-inch force main (or nearly ten miles in length). A primary purpose of the Project is to provide water and wastewater service to the Village, a 1,900 acre parcel located in the unincorporated part of the County several miles west of the Florida Turnpike, south of State Road 710, and north of the Villages of Wellington and Royal Palm Beach. The Village will be the home of the Scripps Project and Campus. The Transmission Line will run from the southeastern corner of the Village south to Northlake Boulevard, then east to 140th Avenue North, then south along that roadway to 40th Street North, where it turns east until it interconnects with existing facilities. The wastewater will be collected in a regional pump station on the Scripps Project site, where it will be pumped through the Transmission Line to the East Central Plant, which will be the primary treatment facility. The East Central Plant is owned and operated by the City of West Palm Beach (City), but the County owns between forty and forty-five percent of the treatment capacity. Because the wastewater system is interconnected, the wastewater could also be treated at the County's Southern Regional Plant. Ultimately, the flow from the Scripps Project will be one or two million gallons per day. The Transmission Line is the only way that wastewater can be handled at the Scripps Project. A preliminary analysis by the Department and the South Florida Water Management District determined that on-site treatment was not feasible because of the environmentally sensitive nature of the area. The Scripps Project will include residential units, commercial entities, and institutional uses, such as medical clinics. Besides serving these customers, the Transmission Line will also serve other customers in the area. The County has already signed agreements with the Beeline Community Development District (which lies a few miles northwest of the Village) and the Village of Royal Palm Beach (which lies several miles south-southeast of the Village). At the time of the hearing, the County anticipated that it would also sign an agreement with Seacoast Utility Authority (whose service area is located just southeast of the Village) to transport wastewater through the Transmission Line. All of the treatment facilities have sufficient existing capacity to treat the estimated amount of domestic wastewater that will be generated by the Scripps Project and the other users that will discharge to the Line. The County commenced construction of the Transmission Line in May 2005 when the Department issued the Permit. On August 2, 2005, the County published the Department's Notice to issue the Permit, and once the Petitions were filed, the County stopped construction pending the outcome of this hearing. Approximately seventy percent of the Transmission Line is now completed. The Permit does not allow the Transmission Line to be used until it is pressure tested and certified complete. Upon completion, the County must receive an Approval to Place a Domestic Wastewater Collection/Transmission System into Operation from the Department. Such approval is given only after the County has given reasonable assurance that adequate transmission, treatment, and disposal is available in accordance with Department standards. See Fla. Admin. Code R. 62-604.700. On August 15, 2005, Petitions challenging the issuance of the Permit were filed by ITID and the individual Petitioners. ITID contends that the Transmission Line will convey not only domestic wastewater, but also industrial waste; that the County did not comply with all applicable technical standards and criteria required under the Department's rules; that the Project will be located on ITID's right-of-way, on which the County has no right to occupy; that the Project will be located within seventy-five feet from private drinking wells and does not provide an equivalent level of reliability and public health protection; and that the pipe material and pressure design is inappropriate for the Transmission Line's requirements. The individual Petitioners (who filed identical Petitions) are mainly concerned about the location of the Transmission Line in relation to their private drinking wells and property, the possibility of the pipe bursting or leaking once it becomes operational, and the restoration of their property to its original condition after construction is completed. As to the property claims by all Petitioners, the County plans to place the Transmission Line in property that it either owns or has an easement, in property that it is in the process of condemning, or in a public right of way. While the County acknowledges that it has already placed, and intends to place other portions of, the Transmission Line in easements that ITID says it has the exclusive right to use and for which a permit from ITID is required, the County alleges that it also has the right to use those easements without an ITID permit. The dispute between the County and ITID is the subject of a circuit court proceeding in Palm Beach County, and neither the Department nor DOAH has the authority to decide property interests. Petitioners' Objections Domestic wastewater and pretreatment The wastewater that will be generated by the Scripps Project is considered domestic wastewater; it will not include industrial wastewater. Waste that is industrial or non- domestic must be pretreated to protect the wastewater plant, collection system, and the health of system workers and the general public. The Department administers a pretreatment program through which it requires a public wastewater utility to police the entities that discharge to their wastewater plants. A central part of the pretreatment program is the local ordinance that gives legal authority to the utility to permit, inspect, and take enforcement action against industrial users who are part of the pretreatment program. The utility files an annual report with an industrial user survey, and the Department periodically inspects and audits local pretreatment programs to ensure they are being operated as intended. The system is not failsafe but is designed to ensure that potentially harmful wastes are rendered harmless before discharge. For example, the utility has the authority to immediately shut water off if a harmful discharge is occurring. Both the County and the City have pretreatment programs approved by the Department. The City has an ordinance that allows it to enforce the pretreatment standards for all entities that discharge to its wastewater system. The County Water Utilities Department has a written pretreatment manual, and the County has zoning restrictions on the discharge of harmful material to the wastewater system. It has also entered into an interlocal agreement under which it agrees to enforce the City ordinance. The County provides wastewater treatment to industrial, educational, and medical facilities, and it has never experienced a discharge from any of these facilities that has caused adverse health or environmental impacts. The County pretreatment program for the Southern Regional Facility was approved in 1997. The City pretreatment program for the East Central Regional Facility was approved in 1980. The Scripps Project must apply for a permit from the County and provide a baseline monitoring report, data on its flow, and information on the flow frequency and raw materials. Medical waste from the Scripps Project will be pretreated to render it safe before it is discharged into the Transmission Line. Transmission Line Design The Transmission Line was designed in accordance with the technical standards and criteria for wastewater transmission lines in Florida Administrative Code Rule 62- 604.300(5). That rule incorporates by reference a set of standards commonly known as the Ten State Standards, which contain several of the standards used in the design of this project. These standards are recommended, but are not mandatory, and a professional engineer should exercise his or her professional judgment in applying them in any particular case. The Transmission Line also meets the design standards promulgated by the America Water Works Association (AWWA). Specifically, the County used the AWWA C-905 design standard for sizing the polyvinyl chloride, or PVC, pipe used in the project. The County has received written certification from the manufacturer that the PVC pipe meets the standards in AWWA C-905. The Transmission Line is designed with stub-outs, which will allow for future connections without an interruption of service, and inline isolation valves, which allow the line to be shut down for maintenance. The Use of PVC Pipe There is no standard regulating the selection of PVC pipe material in the Department's rules. Instead, the Department relies on the certification of the applicant and the engineer's seal that the force main will be constructed to accepted engineering standards. The only specification applicable to the Transmission Line is the Ten State Standard, adopted and incorporated by reference in Florida Administrative Code Rule 62-604.300(5)(g). That document contains a general requirement that the material selected have a pressure rating sufficient to handle anticipated pressures in wastewater transmission lines. The Transmission Line will be constructed with PVC piping with a thickness of Dimension Ratio (DR) 32.5, which is the ratio of the outside diameter of the pipe to its thickness. Higher ratios mean thinner-walled pipes. This is not the first time the County has used 32.5 PVC piping for one of its projects, and other local governments in the State have used 32.5 or thinner pipe. The County is typically conservative in requiring thicker-walled pipe, because most transmission lines are built by developers, and the County is unable to design the entire line or control or inspect its installation. The specifications for wastewater transmission lines built in the County call for the use of DR 25 pipe. On this project, however, the County determined that thicker- walled pipe would have been an over-design of the system because the County controls the pump stations and oversees the installation; therefore, the Director of the Water Utilities Department has waived that requirement. The County considers the use of DR 32.5 PVC to be conservative. Although this pipe will be thinner than what is typically used in the County, it satisfies the Department's requirements. The Department has permitted many miles of similar PVC force mains in South Florida, and none have failed. PVC has benefits over other transmission line material, such as ductile iron. For example, PVC is more corrosion resistant. Wastewater generates hydrogen sulfide as it decomposes, which can form highly corrosive sulfuric acid. Some of the older transmission lines in the County that were made of ductile iron have corroded. PVC also has a superior ability to absorb surges, such as cyclical surges, than ductile iron. It is easier to install, and its interior flow characteristics are smoother than ductile iron or pre-stressed concrete pipe. Mr. Farabee, a professional engineer who testified on behalf of ITID, recommended a DR 14 pipe, which is thicker- walled than the DR 32.5 pipe used by the County. While he opined that the DR 32.5 pipe was too thin for the project, he could not definitively state that it would not pass the 150 per square inch (psi) pressure test. He also opined that the pipe is undersized because it will be unable to withstand the surge pressures during cleaning. The witness further testified that the pipe would be subject to much higher pressures than 150 psi, and therefore it was impossible to know whether the pipe would fail. In his opinion, this means the Department did not have reasonable assurance for the project. The County consulted with the Unibell PVC Pipe Association (Unibell) in the planning of this project. Unibell is a trade association that provides technical support for PVC pipe manufacturers. Robert Walker, a registered professional engineer and Unibell's executive director who testified on behalf of the County, disagreed with Mr. Farabee's conclusions concerning the adequacy of the PVC pipe in this project. The AWWA C-905 standard uses a safety factor of two, which means the pipes are tested at pressures that are at least twice their stated design strength. Mr. Walker explained the different standards that apply to PVC pipe. DR 32.5 pipe, which is used in this project, has a minimum interior pressure rating of 125 pounds per square psi. Each pipe section is tested before it is shipped at 250 psi, and the minimum burst pressure for the material is in excess of 400 psi. The pipe also meets a 1000- hour test at 270 psi. In light of these standards and testing, the pipe will pass the two-hour 150 psi test required by the Department. Mr. Farabee expressed some concern that the PVC pipe would be more prone to breakage than ductile iron or thicker PVC. However, the PVC pipe standards provide that the pipe can be flattened at sixty percent without splitting, cracking, or breaking. At shallow depths on dirt roads, ovalation, which occurs when PVC is flattened through pressure, will initially occur, but over time the soil around the pipe will become compacted and result in re-rounding of the pipe. The joints are three times stiffer than the body of the pipe, which will protect the joint from excessive ovalation and leaking, and the use of mechanical restrained joints will further strengthen the joints. There has been no joint leakage in Florida due to deflection of the joints. Finally, there have been no failures of PVC pipe caused by three-feet of fill, which is the depth to which the Transmission Line pipe will be buried. To further protect the pipe, the County optimized its pumping system to avoid cyclical surges by using variable frequency drive pumps that gradually increase and decrease speed rather than just turning on or off. In addition, the pump stations are fed by two power lines that come from different directions and emergency generators, which should lessen the chances of harmful surging. Testing the Installation The anticipated pressures in the Transmission Line will likely be about 50 psi. After installation, the Line will be pressure tested at 150 psi for two hours, which is sufficient to provide the Department with reasonable assurance that the Line will hold pressure and will not leak. Also, the County contract inspectors are on the construction site daily. If problems with the installation arise later, the County has committed to promptly fix the problem, even if it means digging up the line. During the hearing, ITID asserted that the Uniform Policies and Procedure Manual standards, which the County has adopted for use by developers when constructing wastewater transmission lines, should be applied to the County as well. This standard, which requires pressure testing to 200 psi for PVC pipes larger than 24 inches, has not been adopted by the Department and is not an applicable Department permitting standard. Even if it did apply, the Transmission Line would meet this criterion because it is designed to withstand 270 psi for at least 1,000 hours. Mr. Farabee believed that the entire Transmission Line would be pressure tested after the construction was complete, which would require digging up sections of the pipe to install bulkheads. However, this assessment of the County's testing program is incorrect. Leisha Pica, Deputy Director of the Water Utilities Department, developed the schedule for the project, helped develop the phasing of the work and budget, and oversaw the technical aspects. She stated that the County has successfully tested approximately fifty percent of the line that was already installed at 150 psi for two hours and not a single section of the line failed the test. Compaction The County has stringent backfilling and compaction requirements, which are sufficient to ensure the pipe will be properly installed and that there will be adequate compaction of the fill material. The County plans and specifications provide that compaction must be to ninety-five percent of the American Association of State Highway and Transportation Officials (AASHTO) standards for non-paved surfaces and one hundred percent of AASHTO standards for paved surfaces. Even ITID's expert agreed that the compaction specifications are sufficient. Mr. Farabee contended, however, that even though the standards are stringent, the County cannot properly test the installation for compliance with the standards. Mr. Farabee believed that testing of the backfill would be done after all of the construction was complete. In that case, he did not see how the testing could be done without digging many holes to check for the density of the backfill. These assumptions, however, are incorrect. The evidence shows that a total of two hundred sixty-four compaction tests have already been done on the portion of the Transmission Line that was completed. No part of the installation failed the tests. The County has an inspector who observes the installation and pressure tests. The compaction was tested at every driveway and major roadway, as well as every five hundred feet along the route. While Lander and D'Ordine pointed out at hearing that no compaction tests have been performed on the dirt roads which run adjacent to their property and on which construction has taken place, the Department requires that, before the work is certified as complete, non-paved roads must be compacted in accordance with AASHTO standards in order to assure that there is adequate compaction of the fill material. The Sufficiency of the Application When an application for an individual transmission/ collection line permit is filed with the Department, the applicant certifies that the design of the pipeline complies with the Department's standards. However, not all of the details of the construction will be included in the permit application. The Department relies on the design engineer to certify that the materials used are appropriate. The application form is also signed and sealed by a professional engineer registered in the State of Florida. All plans submitted by the County, including the original, modifications, and final version, were certified by professional engineers registered in the State of Florida. After receiving the application, the Department requested additional information before issuing the permit, and the County provided all requested information. The original construction plans that were submitted with the application were changed in response to the Department's requests for additional information. The Permit issued by the Department indicates the Transmission Line would be constructed with ductile iron pipe, but this was a typographical error. ITID maintains that all of the technical specifications for the project must be included in the application, and because no separate engineering report was prepared by the County with the application, the County did not meet that standard. While the County did not submit an engineering report, it did submit sufficient data to provide reasonable assurance that the project will comply will all applicable rules of the Department. As a part of its application package, the County submitted construction plans, which contain the specifications required by the Department. Also, the general notes included in the construction drawings specify the use of restrained joints where appropriate, the selection of pipe material, the pressure testing of the Transmission Line, and other engineering requirements. In addition, the plans contain numerous other conditions, which are also specifications sufficient to fulfill the Department's requirements. Finally, further explanation and clarification of the technical aspects of the application was given by the County at the final hearing. At the same time, the Department engineer who oversaw the permitting of this project, testified that a detailed engineering report was not necessary. This engineer has extensive experience in permitting transmission lines for the Department and has worked on over five hundred permits for wastewater transmission and collection systems. The undersigned has accepted his testimony that in a relatively straightforward permit such as this, the application and attachments themselves can function as a sufficient engineering evaluation. This is especially true here since the County is seeking only approval of a pipeline project, which would not authorize the receipt of wastewater flow unless other wastewater facilities are permitted. Impacts on Public and Private Drinking Water Wells As part of the design of the Transmission Line, the County located public and private drinking water wells in the area of the line. County personnel walked the route of the Transmission Line and looked for private wells and researched the site plans for all of the properties along the route. No public wells were found within one-hundred feet of the Transmission Line route, but they did find seventeen private wells that are within seventy-five feet of the line. None of the Petitioners have private wells that are within seventy- five feet of the line. While Petitioners D'Ordine and Hawkins initially contended that the well on Hawkins' property was within seventy-five feet of the Transmission Line, at hearing Mr. D'Ordine admitted that he "misread the plans and referred to the wrong property." In order to protect the private drinking water wells, Florida Administrative Code Rule 62-604.400(1)(b) requires that the County provide an extra level of protection for the wells that are within seventy-five feet of the Transmission Line. The County will provide that extra level of protection by installing restrained joints that will restrain the joints between the pipe sections. The restrained joints are epoxy-coated mechanical devices that reduce the tendency for the pipes to separate under pressure. The County has used these restrained joints on its potable water and wastewater lines in other areas of the County and has never experienced problems with the devices. The restrained joints will provide reliable protection of the private wells within seventy-five feet of the Transmission Line. The Department is unaware of any instances where restrained joints have failed in South Florida. If more wells are discovered that are within seventy-five feet of the Transmission Line, then the County will excavate the Line and install restrained joints. Minimum Separation Distances The County has complied with all applicable pipe separation requirements in the installation of the Transmission Line. More specifically, it is not closer than six feet horizontally from any water main and does not intersect or cross any reclaimed water lines. See Fla. Admin. Code R. 62-555.314(1)(a). It will be at least twelve inches below any water main or culvert that it crosses. See Fla. Admin. Code R. 62-555.314(2)(a). Finally, it will be a minimum of twelve inches below any culverts that it crosses. (However, the Department has no separation requirement for culverts crossed by the Transmission Line.) h. The M-Canal Crossing The Transmission Line must cross the M-canal, which runs in an east-west direction approximately midway between 40th Street North and Northlake Boulevard. The original design called for the Transmission Line to cross above the water, but the City and the Department suggested that it be located below the canal to eliminate the chance that the pipe could leak wastewater into the canal. In response to that suggestion, the County redesigned the crossing so that a 24- inch high density polyethylene pipe in a 48-inch casing will be installed fifteen feet below the design bottom of the canal. The polyethylene is fusion-welded, which eliminates joints, and is isolated with a valve on either side of the canal. Appropriate warning signs will be installed. See Fla. Admin. Code R. 62-604.400(2)(k)2.-5. The depth of the subaqueous line and the use of the slip line, or casing, exceeds the Department's minimum standards. See Fla. Admin. Code R. 62-604.400(2)(k)1. i. Flushing Protocol Section 48.1 of the Ten State Standard recommends that wastewater transmission lines maintain a velocity of two feet per second. When the Transmission Line becomes operational, it will not have sufficient flow to flush (or clean) accumulated solids from the lines at the recommended two feet per second velocities. (Sufficient flow will not occur until other customers connect to the Transmission Line during the first one to three years of operation.) Accumulated solids produce gases and odors that could create a problem at the treatment plant and might leak out of the manhole covers. To address this potential problem, Specific Condition 9 of the Permit requires the County to flush the lines periodically. Pursuant to that Condition, the County plans to flush the Transmission Line with additional water which will raise the velocity to three or four feet per second, so that the accumulated solids will be flushed. The water will be supplied by large portable tanks that will be temporarily set up at several locations along the Line. During the purging of the Line, sewage will collect in the pump stations until the purge is finished. There is sufficient capacity in the pump stations to contain the wastewater. In addition, the County will use a cleansing tool known as a pig, which is like a foam bullet that scrapes the sides of the pipe as it is pushed through the line. This protocol will be sufficient to keep the Line clean. ITID asserts that the County's plan for flushing is inadequate, because it does not provide enough water for long enough to flush both the 20-inch and 30-inch lines. Mr. Farabee calculated that the County would need almost twice the proposed volume, or almost six million gallons, to adequately flush the lines. ITID's analysis of the flushing protocol is flawed, however, because it assumes a constant flow in all segments of the pipe, which is not practical. In order to maintain the flushing velocity of three feet per second, the County will introduce water into the Transmission Line at three separate locations, resulting in a more constant flow velocity throughout the Transmission Line. In this way, it can maintain the proper velocity as the lines transition from a 20-inch to 30-inch to 36-inch pipe. The County has flushed other lines in the past using this protocol and has had no problems. This flushing protocol would only be in effect from one to three years. The County estimates that the necessary volumes to maintain a two-feet-per-second velocity in the 20- inch line would be reached in about one year. The 30-inch line should have sufficient flows sometime in 2008. These estimates are based on the signed agreements the County has with other utilities in the area to take their flows into the Transmission Line. Because of these safeguards, the Transmission Line will not accumulate solids that will cause undesirable impacts while flow is less than two feet per second. Other Requirements The construction and operation of the Transmission Line will not result in the release or disposal of sewage or residuals without providing proper treatment. It will not violate the odor prohibition in Florida Administrative Code Rule 62-600.400(2)(a). It will not result in a cross- connection as defined in Florida Administrative Code Rule 62- 550.200. The construction or operation of the Transmission Line will not result in the introduction of stormwater into the Line, and its operation will not result in the acceptance of non-domestic wastewater that has not been properly pretreated. If constructed and permitted, the Transmission Line will be operated so as to provide uninterrupted service and will be maintained so as to function as intended. The record drawings will be available at the Department's district office and to the County operation and maintenance personnel. Finally, concerns by the individual Petitioners that the County may not restore their property to its original condition after construction is completed are beyond the scope of this proceeding. At the hearing, however, the Deputy Director of the Water Utilities Department represented that the County would cooperate with the individual property owners to assure that these concerns are fully addressed. Reasonable Assurance The County has provided the Department with reasonable assurance, based on plans, test results, installation of equipment, and other information that the construction and installation of the Transmission Line will not discharge, emit, or cause pollution in contravention of the Department's standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying all Petitions and issuing Permit No. 0048923-017-DWC. DONE AND ENTERED this 18th day of October, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 18th day of October, 2005.
The Issue Whether the Petitioner is entitled to an extension of time of 565 days for the completion of the project which is the subject of this proceeding, as opposed to the 367 days time extension which was granted for completion, and thereby is free from liquidated damages in the amount of $31,680.
Findings Of Fact On February 21, 1973, a contract was entered into between the Petitioner and Respondent for the construction of Phase II, University of North Florida, at Jacksonville, Florida, State Project No. BR-6504/7801-D. The Form of Agreement Between Contractor and Owner For Construction of Buildings, through its Article 4.2 identifies the conditions of liquidated damages. Article 8.5 states the conditions for settlement of claims and disputes. Contained as part of the contract, was standard form AlA Document, A201, American Institute of Architects, General Conditions of the Contract for Construction. Within the document A201, was Article 4.5, warranty of the work by the contractor; Article 8.3.1 discussing the matter of delays and extensions and Article 13.2.1 discussing uncovering and correcting. All these contract conditions are found in Petitioner's Exhibit "A" which was admitted into evidence. In pursuit of the contract obligations, the Petitioner entered into a contract with W. W. Gay, Mechanical Contractor, Inc., 523 Estelle Lane, Jacksonville, Florida. This contract with W. W. Gay as subcontractor contemplated the installation of mechanical parts of the contract work, and the agreement between the Petitioner and W. W. Gay is Petitioner's Exhibit "B", admitted into evidence. Part of the work to be performed by W. W. Gay involved the installation of a hot water piping system. According to Mr. W. W. Gay, President of W. W. Gay, Mechanical Contractor, Inc., 95 percent of the pipe to be used in the Phase II project was already available, having been left over from Phase I of the University of North Florida Project. This pipe had been stored for as long as 16 months, exposed to the weather. The storage itself was in accordance with the conditions of modification to contract document prepared by Reynolds, Smith and Hills, Architects, Engineers and Planners of Jacksonville, Florida. Petitioner's Exhibit "C" sets out the requirements for storing the aforementioned pipe. In addition, Mr. Gay testified that some of the type resin epoxy utilized in the Phase I project was left over and was stored in a facility whose temperatures reached 90 degrees Fahrenheit, although the recommended storage temperature for the substance was 70 degrees Fahrenheit. The piping spoken of was a type manufactured by Ric-wil Manufacturing known as FRP, Dual Gard 250. The pipe was identified in the course of the hearing by Carl Bowles, General Superintendent for W. W. Gay, as being a fiberglass type pipe. This pipe had been selected in lieu of the job specification pipe which is a form of asbestos pipe manufactured by Johns Manville, due to the fact that the Johns Manville pipe had not been approved for release by Johns Manville's quality control department. The substitution of the Ric-wil pipe was approved by the project architect, John Brickert, who was also the project manager and an employee of Reynolds, Smith and Hills. The approval for substitution was on the basis that the Ric-wil pipe was acceptable because it was a non-metallic pipe and the Johns Manville pipe was a non-metallic pipe. Approval for the substitution had been granted in Phase I and carried over into Phase II. In addition to the hot water piping system in Phase II, W. W. Gay installed a chill water system using a PVC type pipe identified as Ric-wil Chil Gard. Prior to the installation of the Ric-wil Dual Gard pipe in Phase I, W. W. Gay had never installed that type piping system. In the course of the installation of the piping system in Phase I, some problems were experienced with the installation which were not similar to the problems that would be experienced in the construction of the Phase II University of North Florida project. Phase I was completed utilizing the Ric-wil Dual Gard pipe. In the beginning of Phase II, W. W. Gay ran the cold water system and hot water system in a common area underground from valve pit one to valve pit six, in order to put into operation buildings 008 and 009 of the University of North Florida. These locations are shown on the engineering drawing which is Petitioner's Exhibit "K", entered into evidence. Installation of the two piping systems commenced in October of 1973. Sometime in the middle part of November, 1973, a test was conducted on the hot and chilled water systems between valve pits one and six. The hot water system passed the test. The chilled water system failed. Later in November, the chilled water system also passed. This successful test opened up the hot and chilled water systems to buildings 008, 009 and 011. Further tests were conducted in early January, 1974 and again the hot and chilled water lines passed. In January, 1974, W. W. Gay began to run the hot water piping system from valve pit six to valve pit seven and in the area of building 010 found that the line would not hold pressure. A decision was made to retest between valve pit one and six, a leek as found in the area of valve pit one. This leak was discovered in late January, 1974. A subsequent test of the hot water piping system was run in early February, 1974, between valve pit one and valve pit six and into the buildings 008, 009 and 011. This test failed. In the middle of February, 1974, a further test was made from valve pit one to the end of the line, to the northwest corner of building 011, and this test failed. For the balance of February, 1974, time was spent trying to repair the leaks in the hot water piping system. These continued failures in the system brought about two meetings to discuss the solution of the problem. These meetings will be discussed subsequently. At the time the subcontractor was experiencing problems with the installation of the hot water system, problems were also being experienced with the chill water system. Throughout March, the chill water system was continuing to be installed and in late March a leak was discovered opposite building 010. This leak was repaired. In mid April a leak was found in the chill water system in the area of valve pit six and an attempt to repair it was unsuccessful. Problems continued until June, 1974, at which time replacement of the water pipe and fittings was begun between valve pit one and six. Further testing showed a failure in the chill water piping. Finally in September, 1974, the chill water system passed. One of the problems with the chill water piping system concerned the couplings for that system which were found to be defective. An example of the problems associated with the couplings in the chill water system is demonstrated through Exhibit "N", by the Petitioner, which is a cross section of one of the couplings which was removed after being installed in the Phase II University of North Florida Project. This cross section shows numerous surface irregularities, which promote leaks. On February 28, 1974, a meeting was held in the offices of Reynolds, Smith and Hills which was attended by the project manager, John Brickert; representatives of the Petitioner; representatives of Ric-wil, Incorporated; representatives of the University of North Florida; representatives of the subcontractor W. W. Gay, and other representatives of Reynolds, Smith and Hills associated with the project. Varying theories were advanced in trying to explain the problems associated with the hot water piping system. From the subcontractor's point of view, expressed by W. W. Gay, this difficulty was not obvious because it was his contention that the pipe was being installed according to the directions of the manufacturer's representative who was on the job site for some 90 percent of the installation. Jack Green, the mechanical construction specialist for Reynolds, Smith and Hills, testified that from his on site observations, which occurred about the general time frame of the meeting of February 28, 1974, that he had seen water in the trenches around the building 010. Furthermore, according to Green, the subcontractor had undercut the ditches and had attempted to install the hot water piping system while the ditch was too wet, using loose soil which was not compacted. In addition Mr. Green stated that he felt that the joints were dirty and moist and had not been sanded properly. Finally, Mr. Green stated that he had stopped the installation of the pipe because of the conditions mentioned. The deposition upon written questions of C. G. Schoor, Service Manager with Ric-wil, said that he had been at the job site on February 11, 1974, and had noticed water leaks in the fringes and couplings of the hot water pipes. He felt that in the area of the flanges there was improper sanding because when the pipe was pulled out, the surface was clean and resin remained in the flange. He also commented in his deposition that there was improper surface sanding and a large area of entrapped air on one of the 10" couplings pulled out between points two and three on the second joint north of two and this occurred during an initial 150 lb. hydro test. In one joint the resin epoxy had not hardened and was still in a plastic state, according to Ben Schoor. In speculating about the plasticity, Schoor said that it could have been promoted by long storage of the material, or contamination of the material which constitutes the resin epoxy or improper mixture of the two components of the epoxy resin on the part of the subcontractor. He felt that this plasticity would probably promote leaks but he observed no such leaks where the resin epoxy was plastic. The deposition on written questions of Ben Schoor was entered into evidence as Respondent's Exhibit "B". Discussion at the February 28, 1974, meeting considered two alternatives: First, to allow for the further installation of the Ric-wil Dual Gard System using the expertise of the Ric-wil employees; second, to substitute the Ric-wil Dual Gard pipe with Ric-wil Hi-Gard Pipe, which is steel. A further meeting on March 4, 1974, was held with representatives of the Petitioner; the subcontractor, W. W. Gay; Reynolds, Smith and Hills, by John Brickert, and other representatives of that firm. It was decided at that meeting, that due to the effect of oil shortages causing the unavailability of the Ric-wil Dual Gard pipe and fittings, the Ric-wil Company would design a pipe system to utilize steel pipes, and the subcontractor would determine the necessary adjustments to use the steel pipe. At this meeting the subcontractor, W. W. Gay, requested some relief from possible liquidated damages, and the minutes of that meeting indicate that consideration of that request was deferred. According to notes from time sheets of Reynolds, Smith and Hills, which was admitted as Respondent's Exhibit "A", installation of the steel piping system was commenced on July 1, 1974, and completed August 21, 1974. Minutes of the meetings of February 28, 1974, and March 4, 1974, are found as Petitioner's Exhibits "E" and "F" respectively, admitted into evidence. After the March 4, 1974, meeting, discussion was continued on the question of liquidated damages in view of the substitution of the type of piping, and conjecture was made about the problems with the piping system. In correspondence of March 22, 1974, Neil A. Porter, Vice President of the Petitioner, makes reference to the liquidated damages question in this letter to John Brickert, and suggests holding the matter in abeyance. This letter enclosed a letter from W. W. Gay dated March 21, 1974, directed to the Petitioner, which sets out the approximate time to complete the system will be 105 days. The Gay letter also states opinions by Mr. Gay as to what was determined in the course of the February 28, 1974, meeting on the subject of the cause of the problems with the Ric-wil Dual Gard piping. Mr. Gay made further comments that he felt that the change in temperature, from 70 degrees to 90 degrees as stored, adversely effects the resin epoxy and that the ultra violet rays of the sun also effected the pipe which was stored outside. Mr. Gay's letter of March 21, 1974 and Mr. Brickert's letter of March 22, 1974 are Petitioner's composite Exhibit "G", which was admitted into evidence. Mr. Brickert responded to Mr. Porter by letter of March 29, 1974, in which he suggests the question of liquidated damages cannot be addressed at present because the amount of delay is unknown, and Reynolds, Smith and Hills is not a part of the contract and cannot accept a stipulation for extension. This letter is Petitioner's Exhibit "H", which was admitted into evidence. On April 19, 1974, a change order was entered by Mr. Brickert which allowed for the substitution of Ric-wil Hi-Gard steel pre-insulated pipe for the Ric-wil Dual Gard 250 plastic pre-insulated pipe. Page three of that change order indicates the rationale for accepting such a substitute and alludes to the possibility of a time extension which is not subject to identification at the moment of the change order, but which will be requested. This change order is Petitioner's Exhibit "I", which was admitted. A further statement on the Chil Gard pipe and the problems with the couplings is found in Petitioner's composite Exhibit "J", a letter of May 29, 1974, with attachments from John T. Brickert to Neil A. Porter. By Change Order #19 and the accompanying letter of explanation from John T. Brickert, addressed to Jack C. Koons, Administrator, Department of General Services; the project manager has denied, and the Respondent has agreed to such denial, of any time extension conditioned upon problems with the piping systems. This denial by the letter of September 8, 1975, is premised on the conclusion that any failure on the system was due to faulty installation or failure of material which was subject to the control of the Petitioner. As a result of Change Order #19, 198 days of time overrun at $160.00 a day have been assessed as liquidated damages, totaling $31,680.00. These items of Change Order #19 and the correspondence alluded to are found in composite Exhibit "D" by the Petitioner, which was admitted into evidence. A review of the evidence offered on the question of the cause of the problems in the hot water system which was being installed as Ric-wil Dual Gard indicates a possible problem associated with the manufacture of Ric-wil Dual Gard pipe; a possible problem with the storage of the Ric-wil Dual Gard pipe at the job site for a period of up to 16 months prior to its installation; possible problems associated with the storage of the resin epoxy at temperatures which would damage the compound; possible contamination of the resin epoxy; possible improper mixture of the resin epoxy and possible improper application of the resin epoxy on the surface of the piping; possible improper sanding of the surfaces of the pipe where it was joined; possible improper preparation of the ditch in which the pipe was being placed, and possible improper installation of the pipe itself. From an examination of the testimony and the evidence offered in support of that testimony, the cause of the problems with the pipe would appear to be a combination of all the factors mentioned above, but it cannot be discerned with reasonable exactness what the percentage of responsibility is in determining the factors which lead to the rejection of the Ric-wil Dual Gard System in favor of the Ric-wil Hi-Gard System. From the testimony and the exhibits offered on the question of the problems associated with the Chil Water System, the testimony points to defective couplings as the responsible agent for the problems associated with that installation. These defective couplings are found to be the primary cause of the problems associated with the Chill Water System. On the question of liquidated damages penalties to be associated with a substitution of the Ric-wil Hi-Gard System for the Ric-wil Dual Gard System testimony was offered, as described before, by W. W. Gay who was under the impression that he was receiving relief from any liquidated damages and thought that relief would be afforded. This testimony is supported by the testimony of Neil Porter, the Vice President of the Petitioner who likewise had such an understanding. It is also supported by the testimony of John Daniel Cheatwood, the President of Petitioner, who was in attendance at the March 4, 1974 meeting at the offices of Reynolds Smith and Hills. In addition, Jack Green, Field Representative Mechanical, for Reynolds, Smith and Hills recalled that W. W. Gay requested relief from any possible liquidated damages for substitution of the pipe and the appearance was given that some consideration would be made of the necessity for extension of time. Mr. Brickert, as spokesman for the owner, felt that the meeting of March 4, 1974, did not commit the owner to grant an extension, and upon ultimate assessment an extension of time associated with the substitution of the pipe was denied. It is found as a matter of fact that the owner through negotiations with the contractor and/or his subcontractor, W. W. Gay, and through the Petitioner's Exhibit "I" agreed to an extension of time for the installation of the Ric-wil Hi-Gard Pipe in substitution for the Ric-wil Dual Gard pipe.
Recommendation It is recommended that the relief requested from the imposition of liquidated damages due to the delays associated with the installation of the hot water system and chill water system, which were assessed as 198 days at a $160.00 per day, for a total of $31,860, be reduced in an amount which would equate to the time necessary to install the substituted hot water system, and be upheld in the amount which would equate to the time necessary to install the chill water system. DONE and ENTERED this 23rd day of June, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1976. COPIES FURNISHED: William S. Stevens, III, Esquire For the Executive Director Department of General Services State of Florida 725 South Calhoun Street Tallahassee, Florida 32304 S. Gordon Blalock, Esquire Suite 2301 Independent Square Building Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issues determined in this proceeding are whether Respondent engaged in construction contracting without a license as alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Parties Petitioner is the state agency responsible for regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. Petitioner has jurisdiction over the unlicensed practice of construction contracting pursuant to sections 455.227, 455.228, and 489.13. At all times material to this matter, Respondent was the owner of Advanced Connections, LLC. Neither he nor his company is licensed, registered, or certified to perform construction contracting services in Florida. Respondent holds only certification to perform backflow preventer testing. At the heart of this case is whether Respondent may perform backflow preventer repair without a license, certification, or registration. Facts Related to Work Performed It is undisputed that Respondent performed repair of backflow preventers for customers in Tallahassee, Florida. On July 25, 2014, Respondent performed a backflow prevention assembly test on two existing backflow preventers at Old Enrichment Center located at 2344 Lake Bradford Road, Tallahassee, Florida 32301. Respondent provided an invoice to Old Enrichment Center following the backflow test, which described the work performed as follows: “I was able to repair both units and they are Functioning [sic] properly. I had to replace one additional part on, AS #10896, the #2 check cage was cracked. Thank you For [sic] your business. Don’t forget to cover the backflows.” The invoice reflected that Respondent was compensated $343.00 for the worked performed and materials. On August 20, 2014, Respondent performed a backflow test on an existing backflow preventer for Li-Ping Zhang at a property located at 2765 West Hannon Hill Drive, Tallahassee, Florida 32309. Respondent provided an invoice to the customer describing the outcome of the test, and he provided an estimate for repair as follows: Invoice: Thank For this opportunity to serve you. The unit is failing. The #1 check valve is leaking across it. That means it is not holding pressure. The Manufacture of flowmatic no longer makes parts for your unit. But my supplier does have a repair kit available. Due to the Fact are no longer made for your device it may be better to have the unit replaced with a Wilkins 975-XL. Please See Quote * * * Quote for repair: Part: Complete Rubber Kit-$30.00 Labor: This unit may not be repairable due to the fact that there is a limited supply of parts. If there is damage to the #1 Check. I will not be able to repair the unit. If that happens I can return the parts but a labor charge would still remain. Please call with any questions. Thank you. (Quoted text from invoice without correction of grammar.) Respondent ultimately performed the repair on August 25, 2014. The invoice issued to Li-Ping Zhang reflected service provided as “[t]he repair was a success. The unit is Passing [sic]. Paid Cash $115.00 8.25.14 — signed Ian.” Both invoices include the Respondent’s company name, Advanced Connections, LLC. There was no evidence presented of financial or property harm caused by Respondent’s actions. On or about February 2, 2015, Petitioner received a complaint from City of Tallahassee filed against Respondent for his repair of backflow preventers in Tallahassee, Florida. Petitioner commenced an investigation into Respondent’s actions through its unlicensed activity investigation unit. At the conclusion of the investigation, Petitioner filed an Administrative Complaint alleging Respondent engaged in construction contracting without a license. Respondent disagrees with Petitioner and argues that he is eligible for an exemption under section 489.103(9), commonly known as the “handyman” exemption. Life-Safety Matter Respondent’s eligibility for the exemption hinges upon whether repair of a backflow preventer is considered a life- safety matter. The Florida Building Code provides minimum standards for building construction to “safeguard the public health, safety and general welfare.” See § 101.3, Florida Building Code, Building. The Florida Building Code, Plumbing, applies to “the installation, alteration, repair and replacement of plumbing systems, including fixtures, fittings and appurtenances where connected to a water or sewage system . . . .” See § 101.4.3, Florida Building Code, Building. The plumbing chapter of the Florida Building Code defines a backflow preventer as a device or means to prevent backflow of water from flowing from one system into the potable water system.2/ A potable water supply system shall be maintained in such a manner so as to prevent contamination from non-potable liquids, solids, or gases being introduced into the potable water supply through cross-connections or any other piping connections to the system. § 608.1 Building Code, Plumbing. To further explain the purpose of backflow preventers, Petitioner offered Frank Hagen as a plumbing expert. Mr. Hagen, who has 42 years of plumbing experience, has been licensed in Florida since 1981 and is also licensed in Georgia. He holds a certification in backflow preventer testing (issued by the University of Florida TREEO Center) and backflow preventer repair. Mr. Hagen has regularly conducted on-the-job plumbing training for 36 years. Mr. Hagen was accepted as a plumbing expert. Mr. Hagen testified that a backflow preventer is a life-safety device. He explained that this reference is accepted throughout the plumbing industry because the backflow preventer protects water systems by preventing chemicals and poisons from entering the public water system. Mr. Hagen provided examples of potential outcomes if a backflow preventer fails (e.g., three children died as a result of drinking water from a water hose where poison in the sprinkler system contaminated the water). Mr. Hagen also testified that only a licensed plumber is authorized to perform backflow repairs. Mr. Hagen’s testimony is credible. John Sowerby, P.E., a licensed professional engineer for 35 years, who previously worked in the Department of Environmental Protection’s (DEP) Source of Drinking and Water Program, also testified regarding the nature of backflow preventers. He testified that backflow preventers protect public health because they prevent contamination of potable water systems (i.e., water that is satisfactory for human consumption). Mr. Sowerby’s testimony is also found to be credible. Respondent’s testimony that a backflow preventer is not a life-safety fixture, is not supported by the evidence. Respondent testified that backflow preventers are “plumbing fixtures” that are installed between the public water supply line and the private water supply line. Respondent also testified that if a backflow preventer fails, it could cause contamination of the public water supply and public health would be at risk. More importantly, the applicable building codes and the testimony of Mr. Hagen and Mr. Sowerby establish that backflow preventers prevent contamination of public water supply and protect public health. Given that backflow preventers safeguard public health by protecting the public water supply, they involve life-safety matters. The Department has incurred investigative costs in the amount of $415.95 related to this matter. Ultimate Findings of Fact Respondent’s repair of a backflow preventer on a water service line is a life-safety matter and as a result, Respondent is not eligible for an exemption under section 489.103(9). The evidence is clear and convincing that Respondent’s repair of a backflow preventer at the two properties referenced herein constituted the practice of construction contracting without a license. As a result, Respondent is guilty of unlicensed contracting, as charged in Counts I and II of the Amended Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order that: Finds Respondent guilty of unlicensed contracting in violation of section 489.13(1), as alleged in Counts I and II of the Amended Administrative Complaint; Imposes an administrative fine of $6,000 ($3,000 for each count); and Requires Mr. Tuttle to pay the Department’s investigative costs of $415.95. DONE AND ENTERED this 26th day of October, 2016, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2016.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, (Board), was the Pinellas County agency responsible for the certification and regulation of construction specialties. Respondent was certified by the Board as an irrigation systems specialty contractor under license C-5997 in force at the time. Respondent was the qualifying contractor for Sun City Lawn Irrigation. On or about May 17, 1994, Respondent contracted with William J. Schneider, who resided at 5661 25th Avenue North in St. Petersburg, to install a lawn irrigation system in Mr. Schneider's front lawn. The automatic system was to incorporate 2 zones and was, according to the contract and the testimony of Mr. Schneider, to be connected to Schneider's then existing 1/2 horsepower electric pump which drew water from several wells on his property. Mr. Schneider claims there are four wells. No evidence was introduced to contradict that. On the day the system was installed, Mr. Schneider was not at home. Respondent's employees performed a test of the water capacity on Mr. Schneider's property. At first, the wells produced 10 gpm, which was adequate for the system, but after a few minutes of drawdown, they found that the wells were producing only 4 gpm, along with some air. At that time Mr. Freestone, Respondent's sales manager, spoke with Mrs. Schneider about the situation, advising her there were two options open. One was to install a larger pump and the second was to connect the system to the city water supply. Mrs. Schneider returned to the house, presumably to call Mr. Schneider to get his decision on the matter. He claims she did not reach him. Respondent claims that she thereafter returned with directions to install a water line for connection to the city system. This is completely contrary to what Mr. Schneider had wanted and to what is included in the contract. Mr. Schneider claims he did not want to connect to city water because of the added expense of doing so, and he claims he made this very clear to Respondent's employees at the beginning and at all times thereafter. In any case, the system was installed and was, somehow, connected to the city water system near the place where the water line enters the house. In addition, no backflow preventer was installed to insure against contamination getting into the water system as is required by the building code. Most, if not all, the work on this project was completed by Respondent's son and employee, Scott, who was not present at the hearing. Respondent attempted to introduce an unsworn written statement by Scott Bosworth, but it was not accepted. Scott advised Mr. Schneider, when he returned from work that day, that they had been unable to use his pump and wells. Nonetheless, Mr. Schneider paid Respondent in full for the work for which he had contracted, except for a supplemental charge in the amount of $190.95 for the tie in to the city water and the valves and other items connected therewith. Mr. Schneider claims that he made several calls to Respondent's office in an effort to correct the situation but was unable to reach anyone who could give him satisfaction. However, the evidence indicates that on at least one occasion, Mr. Schneider got through and was called back by Mr. Freestone with whom he discussed the situation and the additional charges. He was subsequently advised by counsel that he did not have to pay the additional sum and did not do so. Some time thereafter, Mr. Schneider was advised by the city that he would be fined because of the illegal installation. He then contacted another irrigation company, run by Mr. Williams, who examined the system and determined that the irrigation system installed by Respondent had been connected to the city water system and that no backflow preventer had been installed. A check with the city's building department revealed that no permit had been procured for this installation. Respondent's license to install irrigation systems does not include authority to connect that system with the public water system. That procedure must be done by a licensed plumber. Respondent and Mr. Freestone, the only individuals in the company who had the authority to arrange with a plumber to make the actual hook up to the city system, both deny that any arrangement was made by them to have the system connected to the city water system. Mr. Schneider arrived home on the day in question to find only Respondent's son, Scott, at work on the project. Scott indicated it would be necessary to move two bushes near the house to facilitate connection of the system with the water supply. Mr. Schneider contracted with Scott to move the bushes and remove them from the premises. Scott moved them but failed to remove them. In light of the fact that Scott was working on the system at the time Mr. Schneider arrived home, and the system was found to be connected to the city system thereafter without anyone else touching it, it must be concluded that the connection was made him. Respondent admits he did not come to the property in question while the system was being installed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Board suspending the license of the Respondent for a period of six months with provision for withholding execution of the suspension for a period of one year conditioned upon such criteria as may be deemed appropriate by the Board. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of March, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Largo, Florida 34643-5116 Larry J. Bosworth 8901 14th Street North St. Petersburg, Florida 33716
The Issue This matter began when Respondent, a certified air conditioning contractor, was charged by Petitioner in an administrative complaint with violation of Section 489.129(1)(m), Florida Statutes, through the commission of gross negligence, incompetence, or misconduct in connection with a certain job undertaken by the air conditioning business for which Respondent was responsible as the qualifying agent. Respondent requested a formal administrative hearing. This proceeding followed. At hearing, Petitioner presented testimony of two witnesses and six evidentiary exhibits. Respondent presented testimony of two witnesses, including himself, and three evidentiary exhibits. Petitioner was granted leave to submit a post hearing exhibit no later than March 3, 1989. Proposed findings of fact submitted by Petitioner are addressed in the appendix to this recommended order. No proposed findings were received from Respondent by the required deadline or at the time of the preparation of this recommended order. Based upon all of the evidence, the following findings of fact are determined:
Findings Of Fact Respondent is Steven E. Taucher, a certified air conditioning contractor and the qualifying agent for Discount Air Conditioning & Heating Services, Inc., at all times pertinent to these proceedings. He has been licensed by Petitioner since 1985 and holds license CA-CO36835. His address of record is Tampa, Florida. In May of 1987, Janet Daniels contracted with Respondent's company for the installation in her home of a heat pump system. The system was to consist of one supply duct and a filter back return; a three ton condenser heat pump; a three ton air handler; a 3 ton coil; and a heat strip, thermostat and outdoor slab. The unit was to fulfill heating and cooling functions. Installation work was to be completed in a "substantial and workmanlike manner"; using existing ductwork and electrical connections. Upon execution of the written agreement, Daniels paid Respondent $2,000. A sales rebate of $525 was also signed over to Respondent by Daniels, leaving a total owed to Respondent of $125. This amount was to be paid by June 30, 1987. Daniels never paid this final sum to Respondent because she was not satisfied with his work and eventually had to pay another contractor $420 to make certain repairs to the system. Respondent, by his own admission, failed to timely pull the permits for the project; however, he did install the system, connecting it to existing ductwork and electrical connections as specified in the contractual agreement. Within two and a half hours after installation, the temperature gauge reflected that the unit was not cooling the Daniels' house to the desired 76 degree thermostat setting. Respondent informed Daniels that the unit's capacitor wasn't functioning. Respondent replaced the capacitor. The unit did not function properly and Respondent attempted other repairs at later dates varying from replacement of the thermostat to installation of a sump pump for removal of condensation from the unit. Daniels was still unable to get the unit to cool the residence to the desired thermostat setting. Further, there was a disparity in the temperature between rooms in the residence. On July 23, 1987, Respondent, accompanied by a factory representative from the manufacturer of the heat pump system, returned to the Daniels home. It is undisputed by the parties that the factory representative found that a portion of the unit, the vertical air handler, was not level and not well mounted and, as a result, was poorly installed. He further determined that the unit contained an excess amount of freon, a refrigerant gas. Respondent maintains that he performed the installation task strictly in accordance with the contract between the parties. It is his position that the installation of the air handler without a new wooden support base under it or replacement of the leaking existent return air plenum was in compliance with the parties' agreement to use existing ductwork. Respondent's position as to compliance with contractual terminology is supported by testimony of Petitioner's expert that the meaning within the trade of the terminology "use of existing ductwork" ordinarily includes the existing return air plenum as part of that ductwork. However, testimony of Petitioner's expert also establishes that Respondent's failure to realize and advise Daniels that the existing ductwork was obviously inadequate and might not permit the system to function effectively, demonstrated incompetence with regard to his ability to properly design and install a relatively simple system. The overall sloppiness of the workmanship in the system installation also reflects incompetence on the part of Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered assessing the Respondent an administrative penalty of $500 in accordance with disciplinary guidelines set forth in section 21E-17.001(19)(b), Florida Administrative Code. RECOMMENDED this day of March, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 15th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5193 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS 1.-6. Addressed and adopted in substance. COPIES FURNISHED: David Bryant, Esquire 220 East Madison Street, Suite 530 Tampa, Florida 33617 Steven E. Taucher Post Office Box 271581 Tampa, Florida 33688 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
