The Issue The issues to be resolved in this proceeding concern whether the Respondent is guilty of conduct which violates certain provisions of the Emerald Coast Utilities Authority (ECUA) policy manual amounting to conduct unbecoming an ECUA employee; theft; and violation of ECUA rules or policies concerning outside employment, by allegedly securing outside employment without completing a proper form and receiving advance approval for such outside employment.
Findings Of Fact The Petitioner Emerald Coast Utilities Authority (formerly Escambia County Utilities Authority) is an Agency of local government established pursuant to an enabling act of the Florida Legislature at Chapter 81-376 Laws of Florida, as amended. It is a Regional Water Supply Authority for purposes of Sections 163.01 and 373.1962, Florida Statutes (2006). It is thus given authority to supply utility services to persons and businesses residing in a defined area in Escambia County, Florida, including the provision of water utility service. It is authorized in that Act to employ personnel to secure the provision of such utility services and to regulate the conditions and terms of their employment, their retention, their hiring, and their termination, as well as other forms of employee discipline. It has provided for such regulation of its personnel through the adoption of a "Human Resources Policy Manual" (Manual). That Manual was adopted in accordance with Part 3, Chapter 112, Florida Statutes. The Respondent, at times pertinent hereto, was a utility service technician employed by the ECUA. During his tenure with the ECUA he worked for a number of different supervisors and essentially every district of the ECUA's service area. On April 1, 2006, the Respondent, John Crosby and his wife Patricia Crosby, took title by deed to residential property at 319 West Clay Street, in Pensacola, Florida. They begin renovating that house located at that address for use as a residence. Sometime during the next several months, either because work was being performed on the plumbing or because of inability to pay the water bill, the Respondent had the water service temporarily stopped. The account remained open, however, and was not closed or inactivated on the records of the ECUA. There was an amount billed and outstanding which was unpaid. On or about November 28, 2006, due to the unpaid water bill becoming significantly delinquent, a "cut-off order" to stop water service to the address at 319 West Clay Street was issued and an employee of the ECUA, Donald George, was sent to that address to cut-off the water service. When Mr. George went to 319 West Clay Street and opened the meter box, he saw a "straight pipe" device installed in the meter box and connected to the water line from the street to the house. This straight pipe, thus connected, had the effect of bypassing the water meter so that any water used at that address or residence would not be registered on the water meter and, therefore, it would be impossible to bill for that water. Mr. George called his supervisor, Joe Creary, and asked for instructions concerning this situation. Mr. Creary ordered him to remove the water meter and leave the premises. The next day he was sent back to those premises to turn the water off and to take the straight pipe out of the water line and utility box. He did so and gave the straight pipe device to Mr. Creary. Joel Roberts does Risk Management investigations, as well as performing as a work place Safety and Training Specialist for the ECUA. He received a report regarding the use of the straight pipe at 319 West Clay Street from Mr. Creary. He went to that address and observed the straight pipe installed in the water meter box in the water line to the house at that address and took pictures of it and the residence. He prepared an incident report and then made an investigation to establish who the last customer of record was. The last customer of record was the Respondent, John Crosby, who was still a customer of record on November 28, 2006, when the straight pipe was discovered. The photos of the straight pipe installed were taken November 29, 2006, before it was removed by Mr. George. The Respondent acknowledged that he had a straight pipe device in his possession. He kept it in his personal tool box. He maintained that he used it for making emergency service calls in the area near his home, using his own personal vehicle. He stated during the course of the investigation that he did not know how his straight pipe device became installed at the meter box at the subject property. He speculated that someone was trying to cast him in a bad light or playing a joke possibly, but he did not know who could have done it. During the investigatory phase of this proceeding, he acknowledged that the straight pipe device was his own. Later, he changed his story, to the effect that although he possessed a straight pipe device kept in his personal tool box, that the one placed in the meter box on his water line was not the same one. He maintained that later contention through his testimony at hearing. Several of the ECUA regional supervisors testified, essentially all of whom who had previously supervised the Respondent. Uniformly they established that there was no policy which permitted employees, such as the Respondent, to use their personal vehicles to make service calls after regular working hours or otherwise. They also established that there was no policy which allowed employees to keep or maintain company equipment in their personal possession away from the employment premises of the ECUA as, for instance, a straight pipe device such as the Respondent had possessed at times pertinent to this proceeding. During a February 9th, 2007, hearing conducted by the Petitioner, the Respondent denied placing the straight pipe in the meter box and denied knowledge of who may have done so. He did admit that the straight pipe was property of ECUA which he had previously used in the performance of official duties after hours when responding to "dirty water complaints." He admitted that the straight pipe, ECUA property, had been kept in his personal tool box, but later he changed his story to say that the straight pipe in the meter box was not his own because he had since found his own straight pipe device in another tool box. The fact remains, however, that the Respondent has had difficulty in his ability to keep his water service account current for the above address, and there is a delinquent outstanding balance on that account. The Respondent was the only person who could have benefited from installing the straight pipe in place of his water meter in order to obtain water free of charge, which he did. While it is possible that another person installed the straight pipe in place of the Respondent's water meter and that the testimony of the Respondent's fellow employees is untruthful, the preponderant, persuasive evidence reflects that the Respondent had the greatest motive and the best opportunity to install the straight pipe device and to thus wrongfully obtain free water service at his property. His explanations of how the straight pipe device might have been theoretically placed by some unidentified third party is self-serving testimony. It is testimony which defies logic and which is out- weighed by that of his co-workers to the contrary. The Respondent's testimony in these particulars is thus discounted and not accepted because of insufficient credibility. It has thus been established by preponderant, persuasive evidence that the Respondent is the party who installed the straight pipe device in the water meter box at the property at 319 West Clay Street, Pensacola, Florida, in order to divert un-metered water to the use of persons at that property which belonged to the ECUA. Such water has not been paid for in accordance with the approved rate structure of the ECUA for metered water. The testimony of Tina Shelton establishes that the Petitioner has adopted a code of ethics and a body of personal rules and regulations. These are incorporated in its Human Resources Policy Manual. She established that the current Manual is supplied to all employees; and also established, through Petitioner's Exhibit 11 and her testimony, that the Respondent received the Manual on July 20, 1999. She also established that the Respondent's outside employment with Tom Thumbs Stores, Inc., has not been the subject of any approval form submitted by the Respondent. She established that outside employment had not been approved by the Petitioner and that therefore the Respondent has violated Section A-9(5), of the referenced manual concerning outside employment.
Findings Of Fact In December, 1993, Suwannee Farms, through one of its partners, Robert Wight, applied to the Department of Environmental Protection for a wastewater treatment facility permit to be constructed on part of its property in Suwannee County, Florida. The Department of Environmental Protection requested clarification or amendment of the initial application. Suwannee Farms amended its initial application and the Department determined that the applicant had provided reasonable assurances of compliance with Florida Statutes and the Department's rules and regulations. The permittee listed on the initial application is Robert Wight. Suwannee Farms is a partnership consisting of Robert Wight and Joseph Hall. The permit is to be issued in the name of Suwannee Farms. Issuance in the name of the partnership is within the scope of the Department of Environmental Protection's authority. On January 25, 1994, the Department issued its Intent to Issue the permit. The intent to issue provided in part: Pursuant to Section 403.815, F.S. and DER Rule 17-103-150, Florida Administrative Code, you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The Notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a news- paper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, F.S., in the county where the activity is to take place. Where there is more than one newspaper of general circulation in the county, the newspaper used must be one with significant circulation in the area that may be affected by the permit. If you are uncertain that a newspaper meets these require- ments, please contact the Department at the address or telephone number listed below. The applicant shall provide proof of publication to the Department, at Northeast District Office, 7825 Baymeadows Way, Suite B-200, Jacksonville, Florida 32256-7577, within seven (7) days of the publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. The Notice Of Intent to Issue was published in the Gainesville Sun on February 5, 1994. Proof of publication was timely filed with the Department. The Gainesville Sun is a daily newspaper printed in Alachua County, Florida. The paper is available for purchase by the general public in Suwannee County, Florida and is sold to the general public at newspaper racks. Additionally, the Sun is available to residents of Suwannee County, including the area of the proposed project, through subscription and delivery via newspaper carrier "tubes." The Gainesville Sun is the only newspaper of general circulation delivered on a daily basis to homes in the area affected by the proposed permit. The Gainesville Sun contains national, state and local news stories, including local events in Suwannee County. Additionally, the Sun contains a legal ad section. The information in the Sun is of a public character and of interest and value to the residents of Suwannee County.dd The Sun has been published for more than a year in both Alachua and Suwannee Counties. At least twenty-five percent of the words in the Sun are in the English language and is entered as second class mail at the post office. There is no question that the Gainesville Sun meets the legal requirements of the Department for publication of Notices of Intent to Issue Permits in Suwannee County. Therefore, publication of the Intent to Issue Permit for the proposed wastewater facility involved in this case was appropriate. Through discovery and after an order compelling such answers, the Petitioner listed her objections to the issuance of the permit generally as noncompliance with nitrate level regulations, noncompliance with fencing regulations, noncompliance with set-back regulations and noncompliance with excessive noise and odor regulations. The evidence at the hearing demonstrated that the proposed wastewater treatment facility and land application meet the requirements of Florida Statutes and the Department's rules in the areas specified by the Petitioner as well as other areas of the statutes and rules. Suffice it to say that Petitioner offered no evidence which even remotely demonstrated that the Suwannee Farms permit did not meet these requirements or in some way failed to reasonably assure the Department that the requirements for a wastewater treatment permit with rapid rate land application would be met. Indeed, the only evidence in this case demonstrated that the technology proposed for the wastewater plant and rapid rate land application has been in use for a long time and has historically either met or exceeded the Department's requirements for nitrates (not to exceed 12 milligrams per liter), noise, odor and fecal coliform. There was no evidence submitted that would cause one to conclude that the technology for this facility would not perform as it has in the past at other locations. The plans of the facility clearly show adequate fencing and that the percolation ponds will be set-back at least 500 feet from any wells and at least 100 feet from any property line. Both fencing and pond location meet the requirements of Florida Statutes and Departmental rule. Given these facts, Petitioner has shown its entitlement to a construction permit for its proposed project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order granting the application of Suwannee Farms for a wastewater treatment facility and rapid land application permit. DONE and ENTERED this 4th day of May, 1995, in Tallahassee, Florida. DIANE CLEAVINGER 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 4th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2800 1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. COPIES FURNISHED: Stephen C. Bullock P. O. Box 447 Jacksonville, FL 32201 Thomas I. Mayton, Jr. Assistant General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Frederick L. Koberlein P. O. Drawer 2349 Lake City, FL 32056-2349 Virginia B. Wetherell, Secretary D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Kenneth Plante General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400
The Issue The issue is whether Respondent engaged in an unlawful employment action with regard to Petitioner Billy J. Ford.
Findings Of Fact Mr. Ford is an African-American living in Panama City, Florida. He was born on December 22, 1967. Hanson Pipe is a company that manufactures pre-cast concrete pipe and other structures. It has its headquarters in Charlotte, North Carolina. Some of these pipes and structures manufactured by Hanson Pipes are fabricated for purchase by the Florida Department of Transportation (DOT). Hanson Pipe's Panama City Plant is in the company's eastern region. Hanson Pipe has a total of 61 plants and has 3,500 employees in its eastern region. The plant in Panama City at which Mr. Ford worked during times pertinent, which eventually became a Hanson Pipe facility, was acquired from WPC of Florida, Inc. (WPC) by Hanson Pipe, on July 17, 2004. The principal of WPC was George Wright (Mr. Wright). The plant manager, during times pertinent, was Michael Bascetta, a white person. His assistant was Renwick Chisolm, an African-American. Mr. Ford's first job with WPC was operating a forklift. He would receive printed directions and would load products onto trucks in accordance with those directions. Mr. Wright eventually promoted Mr. Ford to yard foreman. As such, he supervised four people and checked newly manufactured structures and turned in paperwork at the end of the work day. Subsequently he was promoted to Quality Control Technician. As Quality Control Technician (QC Technician), Mr. Ford would ensure that designated standards were met, including standards required by DOT. However, the stamp denoting acceptability would have to be applied by Gracie Dowdy or Terry Pittinger because they were certified quality control technicians, and Mr. Ford was not. When Hanson Pipe took over the WPC's Panama City plant, procedures remained largely unchanged, although some employees noticed that Hanson Pipe was more "strict." One procedure that was changed was the quality control procedure. Hanson Pipe recognized that only American Concrete Institute certified persons could sign off on product quality when the product was destined for DOT use and believed that the method used by WPC did not conform to DOT requirements. Hanson Pipe understood that the failure to comply with state-mandated procedures could result in DOT's District Materials Office withdrawing the plant from the list of qualified plants. This would result in the refusal of DOT to purchase their product. DOT publishes a Materials Manual that sets forth requirements for contractors selling materials to it. Section 6.3.7.2(D) of the DOT Materials Manual requires plants such as the Hanson Pipe plant in Panama City to have enough quality control technicians to "maintain adequate inspection and testing during the production of structures for Department projects." DOT requires that these technicians be certified as American Concrete Institute (ACI) Field Testing Technician, Grade I. DOT requires that all product bought by them have an approval stamp affixed by the ACI-certified technician who inspects the product. In order to adequately comply with this requirement, Hanson Pipe, through plant manager Bascetta, informed Mr. Ford that he would have to pass the ACI examination so that he could become certified. Although Mr. Bascetta was the person who informed Mr. Ford of this, the decision was made by Dana Butterfield, the Quality Control Manager for 20 Hanson Pipe facilities. Mr. Butterfield's office is in Green Cove Springs, Florida. There was no evidence adduced that indicated Mr. Butterfield was aware of Mr. Ford's race. Mr. Ford was given books to help him prepare for the examination and time to study them. Hanson Pipe paid for Mr. Ford's travel to Orlando to take the test, his testing fees, and his hotel expenses. He took the test September 11, 2004, but did not pass it. Hanson pipe paid Mr. Ford's expenses to take the test a second time on November 6, 2004, but he failed it again. When Mr. Butterfield learned on December 6, 2004, that Mr. Ford had failed the test yet again, he told Mr. Bascetta that Mr. Ford was no longer qualified to be quality control technician. Mr. Bascetta, not wishing to discharge Mr. Ford, offered him a position as a forklift driver at a salary of $10.56 per hour. Mr. Ford accepted this reduction from his former $13 per hour. Mr. Bascetta designated Montie Foster, a white employee, as quality control technician. He was informed that he would have to take and pass the ACI certification examination as a condition of holding that position. Mr. Foster took the examination twice, failed it twice, and resigned. Justin Perky was thereafter hired. He took the examination and passed it. He therefore was able to continue in the position of quality control technician. Mr. Ford believed his demotion represented a form of discrimination and harassment, and his attitude began to deteriorate as is demonstrated by the events related hereinafter. On December 8, 2005, Mr. Ford called Webber Ferguson, Hanson Pipes's Employee Relations Manager, on the telephone. Mr. Ferguson works in Hanson Pipe's Charlotte, North Carolina office. Mr. Ferguson provides employee relation support for 61 Hanson Pipe plants in the eastern United States. Mr. Ford complained about his demotion and asserted that Mr. Bascetta was mistreating him. He also alleged that he was a victim of discrimination. In response, Mr. Ferguson went to the plant and conducted an investigation. He interviewed Mr. Hanson, Mr. Bascetta, and some of the minority employees. He found no evidence of discrimination. He did not generate a written report because there was insufficient evidence adduced indicating discrimination or mistreatment of employees. Mr. Ford had some unexcused absences and on January 10, 2005, was "written up" for failure to appear for work on a Saturday as he had agreed to do. He responded to this by threatening to call Hanson Pipe's Human Resources Department. On March 21, 2005, Roy Myers was terminated from his job with Hanson Pipe. Mr. Myers bore the working title, "yard foreman," but he was paid the same as Mr. Ford. There was no job description for "yard foreman," and in fact, no job description for any position in Hanson Pipe. Mr. Ford wanted to be the "yard foreman," but Mr. Bascetta did not need a position like that and therefore did not move Mr. Ford into what was a nonexistent position. Mr. Ford believes this was a manifestation of prejudice. On April 27, 2005, Mr. Ford requested a training topic outline he had signed earlier in the day. By the time Mr. Bascetta took the time to obtain it, he was informed that Mr. Ford had departed the plant. On April 29, 2005, Mr. Bascetta was informed by several employees that Mr. Ford had turned in his uniforms. He did not inform management that he was terminating his employment and indicated to someone that he would return Monday, May 2, 2005. In fact, he never returned. On May 2, 2005, he called the plant office to announce that he had quit. No evidence was adduced that would indicate that Mr. Bascetta is prejudiced toward African-Americans. To the contrary, Mr. Ford said, "I couldn't really say" that Mr. Bascetta was prejudiced. Mr. Ford and other employees would have breakfast with Mr. Bascetta from time to time. Mr. Ford was invited to Mr. Bascetta 's home for a barbeque on one occasion. In the fall of 2005, Mr. Bascetta left Hanson Pipe and opened his own pre-cast concrete operation in Freeport, Florida. He employed Mr. Chisolm as his plant manager. It is unlikely that Mr. Bascetta would seek out and hire an African-American as his plant manager, if he were prejudiced.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Mr. Billy J. Ford's Employment Complaint of Discrimination and Amended Employment Complaint of Discrimination be dismissed. DONE AND ENTERED this 14th day of June, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Billy J. Ford 4028 Charles Circle Pace, Florida 32571 Ganesh Chatani, Esquire Fowler White Boggs Banker P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32301 Jerry Girley Qualified Representative 1350 Vickers Lake Drive Ocoee, Florida 34761 Kevin D. Zwetsch, Esquire Fowler White Boggs Banker P.A. Post Office Box 1438 Tampa, Florida 33602 Heather N. Jarrell, Esquire Fowler White Boggs Banker, P.A. 501 East Kennedy Boulevard, Suite 1700 Tampa, Florida 33602 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Veterans Gas and Appliance Co., Inc., trading as Veterans Gas Company, now holds and has at all pertinent times has held a license issued by petitioner. Petitioner has licensed respondent as a "[d]ealer in liquefied petroleum [LP] gas, in appliances and in equipment for use of such gas and installation." Petitioner's Exhibit No. 1. Respondent has been in business for 25 years or so, at least. (T.48) On December 8, 1983, Clyde K. "Ken" Wallace, a gas serviceman in respondent's employ, was at the office of the Veterans Gas Company in Fort Walton, when a Mr. Wright telephoned, requesting that LP gas be delivered to the Ships Chandler in Destin, Mr. Wright's place of business. Mr. Wallace set out by himself for Destin in a bulk-fill truck to make the delivery. When he arrived, he found he could not enter the driveway, so he parked on the south side of U.S. Highway 98 about 15 feet from the Ships Chandler tank. He knew where the tank was because he had filled it the previous winter, the last time he had been there. Standing with two young ladies in the doorway of the Ships Chandler, Mr. Wright greeted him, saying something like, "I'm glad to see you. We're freezing." Mr. Wallace set right to work. Initially unable to remove the dome which blocked access to the underground tank, he asked Mr. Wright for a claw hammer. With the hammer he succeeded in removing the dome, and then announced he was going to turn off the service valve, which is the valve that allows gas to enter the building from the tank. Mr. Wright asked him not to turn the valve off, saying he was going to ignite the pilot light in his furnace, and disappeared into the store. Mr. Wallace took the dust cap off and, hooking up the hose to the fill valve, pumped one hundred gallons of LP gas at the rate of 25 to 30 gallons a minute, according to the meter on the truck. Before introducing LP gas into the tank, Mr. Wallace never turned off the service valve or any other valve through which LP gas flowed before passing through the regulator and into the system of pipes. In fact, he never touched the service valve, and did not know for sure whether it was on or off. Furnace apparently lit, Mr. Wright reemerged from his store after a few minutes, a check in hand to pay for the gas. Earlier on, at some point during their conversation, Mr. Wright asked Mr. Wallace whether he knew if nearby shop owners heated with gas or otherwise used gas, or something to that effect. Mr. Wallace said he did not know. The question arose because the complex had been a motel with central gas heat before it had been remodeled into shops and offices; and the conversion had taken place since the preceding winter. Mr. Wright wondered aloud whether or not his neighbors owed him money for gas. Mr. Wallace saw Mr. Wright enter one shop door, leave, enter another, leave, and so forth, presumably inquiring of the people inside whether they used gas. By the time he disengaged the hose and closed the fill valve, Mr. Wright was nowhere to be found. Mr. Wallace indicated on the invoice that it had been paid, dropped it on a desk or counter in the Ships Chandler, and left. After Mr. Wallace had driven off, an explosion occurred causing a fire and injuries to two persons. Explosion, fire and injuries occurred not in the Ships Chandler, but on the premises occupied by Way and Associates, Inc. Whoever did the remodeling cut the gas line and neglected to cap it, so that LP gas pumped into the Ships Chandler tank, ended up in a space between the dry wall and the outside wall in the building Way and Associates, Inc. occupied. Ignition of the LP gas accumulated there caused the explosion. Respondent had nothing to do either with the remodeling or with the initial installation of the gas pipes. If Mr. Wallace had followed standard industry practice, he would have turned off the service valve before pumping LP gas into the fill valve of an empty system. After pumping LP gas into the tank, he would have turned off the pump; he would have asked Mr. Wright to turn off all appliances, and, once the appliances were off, he would have turned the service valve back on to charge the system. Then he would have turned the service valve off again, in order to listen carefully. If he had done that, he would have heard LP gas moving through the regulator, even after the service valve was closed, and he would have realized that gas was leaking. Mr. Wallace, who started working for respondent in July of 1982, is qualified as a gas service man but not as a gas appliance service man. Like other new drivers respondent hires, Mr. Wallace went out with an older driver or the manager to learn the route and safety procedures for at least two weeks before going out on his own, but he was never told to check for leaks when introducing LP gas into an empty system.
The Issue The issue is whether Respondent violated Sections 455.227(1)(a) and 471.033(1)(g), Florida Statutes.
Findings Of Fact Mr. Maples is a licensed professional engineer in the State of Florida. He holds license no. PE 10214, and he practices engineering in the Panama City, Florida, area. During all times pertinent Mr. Maples held an active license and practiced pursuant to it. FEMC is charged with providing administrative, investigative, and prosecutorial services to the Board pursuant to Section 471.038, Florida Statutes. The Board exists pursuant to Section 471.007, Florida Statutes, and is authorized to discipline engineers under its authority by Section 455.225, Florida Statutes. Mr. Maples signed and sealed three pages of sprinkler system plans for the Wellness Center at Gulf Coast Community College (Wellness Center), located in Panama City, Florida. These plans were admitted as Petitioner's Exhibit No. 2. No date can be observed on the seal on Petitioner's Exhibit No. 2. It either is illegible or a date was never placed upon it. Hydraulic calculations, which use drawings as a source document, and which appear to coincide with Petitioner's Exhibit No. 2, were dated November 15, 2001. It is deduced, therefore, that Petitioner's Exhibit No. 2 was drawn on or about November 15, 2001. Petitioner filed an Administrative Complaint against Respondent on April 1, 2005. The Administrative Complaint alleged that the plans and calculations for the Wellness Center demonstrated negligence in the practice of engineering. That charge resulted in an final hearing conducted by Administrative Law Judge Stephen Dean on August 11, 2005. That case number was DOAH Case No. 05-2049PL. On October 13, 2005, Judge Dean recommended that the Complaint be dismissed. One of the allegations of negligence in 05-2049PL, related to a charge that inadequate water would be supplied to the hydraulically most demanding (HMD) area in the event of a fire. It was alleged, and proof was elicited, that a single 1 and 1/4-inch pipe traveling from a riser, across the men's shower area to the women's shower area, would be insufficient. This pipe is identified on Petitioner's Exhibit No. 2 as a line between Node 45 and Node 25. This pipe leads to a "T" intersection and further piping carries water, when activated, to the women's shower area. The matter of whether adequate water would be supplied to the HMD devolved into whether the plans called for one 61- foot long, 1 and 1/4-inch diameter pipe, or two 61-foot long, 1 and 1/4-inch diameter pipes. Because there was no pump provided on the drawings, and in fact there was no plan to install a pump, two 61-foot long, 1 and 1/4-inch diameter pipes were necessary to provide sufficient water in case of fire. As was illuminated in Case No. 05-2049PL, calculations were made, based on the drawings, in order to ensure that the HMD area will receive 1500 square feet of coverage per sprinkler head required by the contractor. The coverage required by the contractor exceeds that required by National Fire Protection Association-13 standards. HMD calculations are made at a point most remote from the source of water. The hydraulic calculations are produced through the use of a commercially produced computer program. Calculations from Case No. 05-2049PL became Petitioner's Exhibit No. 3 in this case. At the hearing in Case No. 05-2049PL, the allegation that the fire sprinkler plans signed and sealed by Mr. Maples would not provide adequate water pressure to the HMD area was rejected by Judge Dean. This is because Mr. Maples claimed that the plans, when viewed in light of the calculations, actually depicted two 61-foot long pipes, 1 and 1/4-inch and Judge Dean, while determining that the depiction was inadequate for that purpose, found in essence that adequate water would be provided to the HMD. Mr. Maples works closely with Chris Thomas, a sprinkler contractor whose license does not permit him to design a fire suppression system that consists of more than 49 heads. Their working arrangement is such that it would be expected that Mr. Thomas would understand Mr. Maples' drawings even if they were not as complete as they would be if the drawings were made for a contractor other than Mr. Thomas. In fact, Mr. Thomas participated in the production of the drawings signed and sealed by Mr. Maples. More than one set of drawings were used for the Wellness Center project. The project came under the jurisdiction of the Florida Department of Education. That agency approved the plans and the Florida State Fire Marshal approved the plans, although it is not certain that the plans those agencies approved were Petitioner's Exhibit No. 2. There were errors in the data entry on the hydraulic calculations. The building was completed prior to the time Case No. 05-2049PL was heard on August 11, 2005. Using the plans drawn by Mr. Maples, Mr. Thomas's foremen for the Wellness Center installed a single pipe between Node 45 and Node 25. On a weekend subsequent to the hearing in Case No. 05-2049PL, Mr. Thomas went to the Wellness Center and discovered that only one 61-foot long, 1 and 1/4-inch diameter pipe had been installed in the area represented to be between Node 45 and Node 25. Mr. Thomas immediately installed a second 61-foot long, 1 and 1/4-inch diameter pipe. Mr. Maples never went to the site and, accordingly, was unaware at the time he testified in Case No. 05-2049PL, that only one pipe had been installed. The Administrative Complaint lists five statements made by Mr. Maples in Case No. 05-2049PL that are alleged to express "an opinion publicly on an engineering subject without being informed as to the facts relating thereto." The five statements are further alleged to describe testimony that was, "untruthful, deceptive, or misleading in any professional statement or testimony." As noted above, the statements do not cite with particularity to the Transcript in Case No. 05-2049PL. The five statements read as follows: Respondent testified at the hearing that the line on the plans appearing as a single pipe, in fact, represented two pipes, 61 feet long with 1 1/4 inch diameters, running over the men's showers. Respondent testified at the hearing that the intent to install the sprinkler system with two pipes over the men's showers was obvious to anyone with experience in fire sprinkler systems. Respondent testified that he had signed and sealed revised plans showing a second parallel line over the men's showers. Respondent testified that the second 61 foot long 1 1/4 inch diameter pipe was represented in his calculations by a 3 foot length of pipe. Respondent testified that he used pipe lengths in the supporting calculations that match the pipe lengths shown in the plans. The actual testimony of Mr. Maples that addresses the pipes follows below. The initial questions were posed by Mr. Maples' attorney, Mr. Peters at page 260, line 13, of the Transcript in Case No. 05-2049PL. . Q. Okay. Now, the bulk of this allegation was that the hydraulically demanding design area did not have sufficient water pressure. Let's talk about that. Does the most hydraulically demanding area in this project show that it was receiving sufficient water pressure and distribution? A. Yes, the calculations show that specifically. Q. Do you have any concern that the most hydraulically demanding area is being under served? A. I do not. Q. Do the plans -- while they may not be perfect -- do they reasonably and competently show sufficient water pressure getting to the most hydraulically demanding area? A. Yes. (At this point there was a recess. Subsequently, the interrogation continued.) * * * Q. So do the plans and do the calculations show that there's sufficient water getting to the most challenging -- A. Yes, it does. Q. Okay. And let's take a minute to just make sure we review our nodal system. (At this point the Court interjected and moved the questioning away from the nodal system. The nodal system had been reviewed earlier in the hearing.) * * * Q. How is that? Okay. There is a segment called 20 to 25, which is an inch-and-a-quarter, 61 feet long. A. Correct. Q. And is there a parallel pipe in the same plane that runs along that same segment? A. Yes. Q. How can you tell that from this drawing and this set of calculations? A. I can tell on the calculations, because it tells me from 25 to 30, there's a connection. It tells me that 30 is connected to a three-inch main. Q. All right. Can you show these calculations and -- go over them with us and show us how you see that from these documents? A. Where is my set? Q. Right there. That's yours. THE COURT: Let me ask you this, sir. I see where it says that it's connected to that. But by [sic] my question is, it says that it's only 3-feet long. THE WITNESS: Three feet. Yes, sir. Let me -- can I address that? THE COURT: Surely. THE WITNESS: That is -- I will say an input error on it. But I want to tell you that it doesn't make any difference into the function of the system. BY MR. PETERS: Q. Tell us why not. A. It says 25 to 30 tells me there's a line, a connection to a 3-inch -- to node 30. What that tells me is that 3-inch line is feeding this row of sprinklers right here. Even though it says 3 feet, what it does, it has a short segment of line that just gushes water through there and makes those sprinklers flow a whole lot more than it needed. All right. When you put the right length, you put 61 feet in there, it comes back to just about what this line does, and it cuts the sprinkler flow down in those three areas. But it doesn't effect [sic] the function of the system because it doesn't effect [sic] the head loss in the main system where the pressure goes in the 3-inch line. Q. Head loss. Take a minute to try to explain that. A. The water -- it doesn't effect [sic] the pressure that the sprinklers are getting. What it does, when you put 61 feet in there, those three sprinklers that where it shows a 3-feet [sic] connection, it cuts them down from sprinkling a whole lot more water that's needed back to what's required. But as you go along this -- as you go along this line, go along this line where the 3-inch line is up here, at each place on the 3-inch line, there's a branch that goes towards the sprinklers. And each branch line is calculated separately. And the most demanding branch line is what puts the pressure that's required -- the flow -- required a 3-inch line. So what the 3-foot did, it made these three sprinklers right here flow considerably more, because it was just a little short piece of pipe and didn't have any friction loss going down through there. But it didn't effect [sic] -- it didn't effect [sic] the system head. Because that had less head loss than this one did. So when you put -- BY THE COURT: Q. Head loss is effected [sic] by, what? A. The length of pipe. Flow -- the length of pipe and size of pipe. Q. So will a longer piece of pipe -- assuming all the pipes are the same diameter -- does the pipe -- does the head loss on a short piece, is it greater than a long piece? A. Oh, no. Head loss on short pieces are considerably less than a long piece loss. The further it travels, the more pressure it loses. Q. Okay. And the pressure loss is transmitted, if you will, back to the 3-inch main? It effects [sic] the -- A. It effects [sic] what the flow comes from a 3-inch main. The 3-inch main effects [sic] it, because the three-inch main has the water supply, and has the pressure that's pushing it. Q. So the calculation for this system -- A. Yeah. Q.-- even though there's an error, the error is not a critical error? A. No, sir, it does not effect [sic] the function of the system. Q. It doesn't effect [sic] the function of the system. Thank you. A. What it does, it shows a little more water flow. THE COURT: Okay. DIRECT EXAMINATION (RESUMED) BY MR. PETERS: Q. So do the plans -- does it need a pump to get water to this area? A. No, sir. THE COURT: Now, let me ask you a follow up on that. THE WITNESS: All right. THE COURT: After Mr. Schmidt put his input in, and he was basically engaged to do exactly what he did, and that was, to go through the plans, catch any things that he was concerned about, and turn that back to the general contractor so the general contractor could go back to the people he needed to go back to? THE WITNESS: Yes. THE COURT: The general contractor came back to you, and you did whatever was necessary to generate the second set of plans that you-all put in, which is your Respondent's 1? MR. PETERS: Well, although Respondent's -- can I ask him a couple of questions? THE COURT: Sure. BY MR. PETERS: Q. Respondent's 1, this is the one that shows the second line, the parallel lines, right? A. Yes, if this is the plan we're looking at, it shows the second -- physically shows -- separated it so anybody could see. THE COURT: It also shows the point of service. THE WITNESS: Yes, it also shows a different point of service. It shows --bring it back up to the 5. BY MR. PETERS: Q. But these don't bear your signature. A. This particular set doesn't. We signed some, but I don't know where they are. That came from Gulf Coast College there. Q. All right. All right. In terms of what this case is directly about, then, do the plans provide pipes with adequate diameters for water pressure to provide protection for the area most remote from the main riser? A. Absolutely. Q. Do the plans provide -- do the plans need to show a pump to increase water pressure for the pipe design use? A. No. Q. And did you use pipe lengths in the supporting calculations that match the pipe lengths shown in the plans? A. Yes. (At this point Mr. Peters addresses another matter. Thereafter, Mr. Campbell proceeded with his cross-examination on Page 268, line 25.) * * * BY MR. CAMPBELL Q. Mr. Maples, there was no testimony about phantom pipes in that previous case, was there? A. No. Q. And you would admit that if there was no pipe underneath this Node 25 pipe, that this fork of six sprinkler heads would not adequately be served by 1-and-a-quarter inch diameter pipe; isn't that correct? A. That's correct, with a caveat. The NFPA 13 has a section that says on the density .1 in a 1500 square feet [sic] area, if it is - - if it says ceiling heights less than 20 feet, and this is 10, that you can reduce the area of sprinkling by 40 percent. So that means, if we did that, we would do 900 square feet, and that would be adequate. Now, if you went strictly by NFPA 13 -- Q. But that's not what you drew here. You drew or attempted to draw 1500 square feet. A. That's what we were told to do. But that's not in accordance with NFPA 13. NFPA 13 is less. And we agree NFPA 13 rules. Q. Now, you initially said this was your initial set of plans before you got any input such as being told to do 1500 square feet; is that correct? A. No, no, I was told to do that to start with. Q. All right. Was that part of the specifications on this job? A. I didn't see it. That was --according to the contractor, that was the specifications from Schmidt or whoever they were. Q. All right. Now, looking at the Respondent's 1 you did not sign. A. That one is not signed, but I know there were some that were signed. Q. Doesn't it appear that in these entries for pressures and static pressures, at some point, there was a whiteout and a reentry on the first page of the sheet? A. I can't tell you that. It may have been. Q. All right. Now, in fact, you have got two separate entries of written information where some of those are different. For instance, the required pressure is different -- A. Yes, because it's a different system. This is one that's not in contention right here. This was the gym. It's got the same static pressures and flows, but this is a different set of calculations of the gym. This has not been -- that was for the gymnasium, just to see if there was enough water. They asked us to do that. Q. Now, is the gymnasium a part of the Wellness Center? I thought that was what the Wellness Center was. A. Well, it's part of the Wellness, yes. But it's a separate part. But this has never been in contention. Q. Well, now, on the set of plans, your initial set of plans, there were no such double entries? A. No, they didn't ask for it then. Q. And this separate set of entries here for the gym -- well, this -– yeah -- is still used by the same riser and the same -- A. Yes, sir. Q. -- point of service. A. Yes, sir. Q. So there would be a separate set of calculations somewhere for the gym; is that what you're saying? A. My understanding, they asked Chris to do a set of calculations just so they would have plenty of water at the gym. That's never been in contention. Because one thing, it's located right at the riser. Q. Now, isn't it a fact, if someone never looked at the calculations but only looked at page 2 of Exhibit P-1, that where the node 25 seems to go up to node 45, there is only one line indicating one pipe? A. Depending on who looks at it. Anybody familiar with the calculations and sprinkler systems would know. Q. If they saw no calculations whatsoever, they just looked at this sheet -- A. I would assume so. If it was Joe Blow out there that knew nothing, he would have probably been, you know -- Q. He would think there's one pipe there. A. Who would do that? Q. So the basis of your statement that anyone that knew that there had to be more than one pipe is -- anyone with experience in fire protection systems would know you could not feed -- A. That's correct. Q. -- 6 heads 60 feet down from the 3-inch pipe on a one -- A. An inexperienced person, probably, correct. Q. Well, now, an experienced person would know automatically you couldn't feed it that way, right? You would have to have a second pipe; that's what you're saying? A. Well, you would have to go by the calculations. I didn't say that. Q. But if you didn't go by the calculations, if you didn't know anything about the calculations, would it be obvious to anyone with experience in fire protection sprinkler systems that at the end of 60 feet of a one-and-a-one-quarter-inch pipe you could not support 50 pounds pressure -- support 6 heads on 1 inch pipe? A. I wouldn't say that. Because if I was an experienced person in fire protection and installation, I would look at that, and I would look for something else to see if there was something else. Q. So that sheet of plans by itself is insufficient even with someone with experience in fire protection? A. No, I didn't say that. I said I would be looking for something else. Q. You said you would be looking for something else. A. He would know that there was something supporting it. And especially a licensed contractor that's licensed to design sprinklers, too. He would obviously know. The statement set forth in paragraph 7, of the Administrative Complaint does not appear in the Transcript in Case No. 05-2049PL. Mr. Maples said nothing about showers. He did not say that the single pipe represented two pipes each of which was 61 feet long. What he said was that the calculations told him that there is a parallel pipe in the same plan as the pipe shown on the drawings. He said he could tell that because the calculations showed from Node 25 to 30 a connection to a 3- inch main. Mr. Maples' testimony in this regard was confusing and difficult to follow but not untruthful, deceptive, or misleading. He was not giving fact testimony but was expressing an opinion. The statement set forth in paragraph 8, of the Administrative Complaint does not appear in the Transcript in Case No. 05-2049PL. Mr. Maples never said that the "intent to install the sprinkler system with two pipes over the men's showers was obvious to anyone with experience in fire sprinkler systems." What he said was, that, "Anybody familiar with the calculations and sprinkler systems would know." He further said that if someone familiar with sprinkler systems would know that two pipes were necessary looked at the plans without the calculations that he "assumed" they would know there should be two pipes. With regard to the statement set forth in paragraph 8, when offered to agree with the statement, ". . . an experienced person would know automatically you couldn't feed it that way, right? You would have to have a second pipe; that's what you are saying?" Mr. Maples declined. In response to the question he said, "Well, you would have to go by the calculations. I didn't say that." Mr. Maples' testimony in this regard was not untruthful, deceptive, or misleading. He was not giving fact testimony but was expressing an opinion. The statement alleged as paragraph 9 does not appear in the Transcript. With regard to other plans, he said in response to a question about Respondent's Exhibit No. 1 that, ". . . it shows the second--physically shows--separated so any body could see." He noted that Respondent's Exhibit No. 1 did not bear his signature but said that he had signed some similar plans. There is no proof in the record that his testimony in this regard was untruthful, deceptive, or misleading. The allegation in paragraph 10 of the Administrative Complaint was that Mr. Maples said that the second 61-foot long, 1 and 1/4-inch diameter pipe "was represented in his calculations by a 3 foot length of pipe." Mr. Maples never uttered that statement. In response to a question from Judge Dean, with regard to the 3-foot long pipe, Mr. Maples said, "That is--I will say an input error on it." Mr. Maples' testimony in this regard was confusing and difficult to follow but not untruthful, deceptive, or misleading. The allegation in paragraph 11 of the Administrative Complaint was that Mr. Maples said that, "he used pipe lengths in the supporting calculations that match the pipe lengths shown in the plans." This allegation approximates a verbatim statement made by Mr. Maples. However, he had earlier noted, and thus qualified the statement when he stated that there was input error. Mr. Maples' testimony in this regard was not untruthful, deceptive, or misleading. The allegations contained in the Administrative Complaint at paragraphs 7 and 8, were fairly alleged as the opinions of Mr. Maples. The opinions alleged are in essence that a person with experience in the fire suppression business could determine from the plans and calculations that a second 61-foot long, 1 and 1/4-inch pipe would run parallel to the pipe shown from Node 25 to 45. After an exhaustive study of the plans and calculations in this case, the Administrative Law Judge has not been able to conclude that the testimony as to the second pipe is borne out by Petitioner's Exhibit 2 or the calculations that are Petitioner's Exhibit 3. Moreover, Judge Dean found that the intent to have two pipes, "was not adequately shown in the original drawings." The foremen sent by Mr. Thomas to install the system did not conclude that two parallel pipes were required. They installed only one. An expert called by FEMC, Larry Simmons, an expert in professional engineering, stated unequivocally in this case that using Mr. Maples' drawings and calculations, he could not determine that a second 61-foot long, 1 and 1/4-inch pipe was called for by the plans. Judge Dean was not misled by Mr. Maples' testimony in Case No. 05-2049PL, with regard to the pipe. This was indicated by his acknowledgement in Finding of Fact 8 in his Recommended Order that the intent to have two pipes, "was not adequately shown in the original drawings." Judge Dean was not called as a witness so that he could reveal if he was misled based on the information that became available after the hearing in Case No. 05-2049PL. It was not proven by clear and convincing evidence that Mr. Maples was "untruthful, deceptive, or misleading in any professional statement or testimony." As will be discussed in detail below, Mr. Maples engaged in misconduct in the practice of engineering by expressing an opinion publicly on an engineering subject without being informed as to the facts relating thereto.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board find that Respondent Lester M. Maples did not violate Section 455.227(1)(a), Florida Statutes, but that he offered an opinion publicly on an engineering subject without being informed as to the facts relating thereto in violation of the prohibitions contained in Section 471.033(1)(g), Florida Statutes. It is further recommended that he be reprimanded, placed on two years' probation, and ordered to pay an administrative fine of $1,000. DONE AND ENTERED this 28th day of April, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2006. COPIES FURNISHED: Bruce Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Alvin L. Peters, Esquire Peters & Scoon 25 East 8th Street Panama City, Florida 32401 Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Air Comfort Services, Inc. (ACS) was a subcontractor on state construction project No. BR-729, an extension of the Administrative Support Service Complex on the campus of the University of West Florida at Pensacola. The general contractor on the project was Samuel R. Sharpe, Inc. (Sharpe) Petitioner spent 248 hours on this job as an employee of ACS, between September 13, 1978, and January 24, 1979. After petitioner submitted his affidavit, Jack C. Coons, an administrator employed by the Department of General Services, directed Harrel Bolden, the project manager, to withhold $2,530.30 from the general contractor, pending resolution of the dispute between petitioner and ACS. ACS was also a subcontractor on state construction project No. BR-725, the Educational Research and Development Center at the University of West Florida. The general contractor on this project was Greenhut Construction Company, Inc. (Greenhut). Petitioner spent 176 hours on this job as an employee of ACS, between October 4, 1978, and November 22, 1978. After petitioner filed his affidavit, Jack C. Coons directed Harrel Bolden to withhold $590.24 from the general contractor, pending resolution of the dispute between petitioner and ACS. Petitioner is a certified welder. On the Sharpe job, he worked with other welders and pipefitters, putting in water lines. On November 26, 1978, the excavations for the pipes were first dug. Petitioner himself spent about five hours using a shovel to dig for pipes. Petitioner, who is not a certified pipe fitter, helped fit pipe together, and welded the joints, once everything was in place. In all, there were some 79 four inch pipe joints and 111 two inch pipe joints on the Sharp job water lines. Petitioner also helped a plumber put in other plumbing lines and assisted with the installation of piping for the air conditioning system. He silver soldered the copper pipe joints, and put in cast iron pipe for rain leaders. Petitioner performed similar tasks on the Greenhut job, including welding joints on about 1,020 feet of pipe with 1 1/2" and 2" diameters laid in double random lengths, and welding at least 8 joints of pipe with a four inch diameter. A welder can weld 20 four inch pipe joints or 30 two inch pipe joints in an eight hour day. Petitioner was initially paid at the rate of $6.00 per hour. Beginning in January of 1979, he was paid at the rate of $6.76 per hour. He was paid at the higher rate for 60 of the 248 hours he worked on the Sharpe job. Both the Greenhut and Sharpe jobs involved contracts in excess of $5,000.00.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner be paid $1,825.25. That Greenhut be paid nothing. That Sharpe be paid $1,295.29. DONE and ENTERED this 28th day of August, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. Donald A. Lowery 7706 Gadsden Street Pensacola, Florida 32506 Sharpe, Inc. Post Office Box 107 Pensacola, Florida 32591 Greenhut Construction Co., Inc. Post Office Box 12603 Pensacola, Florida 32576 Lucian H. Morgan 5503 East Shore Drive Pensacola, Florida Mr. Luther Moore Department of Labor and Employment Security Room 205, Ashley Building 1321 Executive Center Drive East Tallahassee, Florida 32301 Air Comfort Services, Inc. 315 South A Street Pensacola, Florida
The Issue Whether Respondent Buckeye Florida L.P., (Buckeye), has provided reasonable assurances to Respondent Department of Environmental Protection (Department) that construction activity for the proposed project will comply with applicable provisions of Chapter 373, Florida Statutes, and related administrative rules.
Findings Of Fact The Parties Petitioner Sharon Cutter lives in Taylor County, Florida. Her home is about two miles south of the closest point of the pipeline project. Petitioners Ronnie, Rebecca, and Mitchell Edwards also reside in Taylor County. Their home is about two miles north of the closest point of the pipeline project. The Department is the state agency that reviewed Buckeye's application for the proposed permit and issued notice of intention to permit the construction activity. Buckeye is the applicant for the proposed permit. Since 1993, the Florida limited partnership has owned and operated a softwood dissolving kraft pulp mill in Taylor County, southeast of Perry.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing all the Petitions and issuing the proposed draft environmental resource permit to Buckeye. DONE AND ENTERED this 11th day of September, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1997.
The Issue The issue in this case is whether Respondent's decision to reject the galvanized pipe replacement bid of Petitioner as non- responsive was erroneous, an abuse of discretion, arbitrary or capricious.
Findings Of Fact Petitioner, Expertech Network Installation, Inc., is a division of Bell Canada. Petitioner is a construction and engineering division of the parent company. It was set up to expand the parent's operations into the United States about nine years ago. Petitioner has steadily replaced its Canadian employees with U.S. employees over those years. The City is a governmental entity established under the laws of the State of Florida. By contract with the DOAH, the City has agreed to utilize Administrative Law Judges to hear, inter alia, bid protests involving the City. On May 7, 2007, the City issued Invitation to Bid No. ITB-PW060607-88. The Invitation to Bid sought bids for replacement of approximately 38,000 linear feet of two-inch galvanized pipe and associated appurtenances with 38,000 feet of four and six-inch DR18 PVC piping and associated appurtenances. The replacement would include approximately 385 service connections with Sch-80 PVC piping, all within the area known as Section 4 of the City. In addition, the scope of work included relocation of approximately 460 linear feet of eight-inch PVC water main pipe and associated appurtenances with 600 linear feet of eight-inch DR18 PVC piping and appurtenances along State Road 78. A total specification package and complete set of drawings for the aforementioned work was prepared by the City's consulting engineer, TetraTech-HAI (hereinafter "Ttech"). The specifications and drawings by Ttech were made a part of the Invitation to Bid. A pre-bid conference was held on May 16, 2007. At that conference, several issues were discussed, resulting in issuance of an Addendum to the Invitation to Bid. The Addendum was issued the same day as the conference and included the following paragraph: Will the City allow directional drilling on the galvanized pipe replacement project? No. All references to directional drillingon the galvanized pipe replacement projectare to be modified to jack & bore. All water main piping proposed to cross driveways shall be installed via jack & bore or open cut methods. Water main piping proposed to cross roadways, including long side services, shall be installed by jack & bore methods. Directional drilling is acceptable for the roadway crossings on the SR 78 Water Main Replacement portions only. Please see the enclosed revised Measurement and Payment section of the specifications (01025) and revised bid schedule. (Emphasis in original document.) The Addendum also extended the due dates for bids by one week, to June 13, 2007. No protest was filed with the City with respect to the terms, conditions or specifications contained in the Invitation to Bid and the Addendum. On Wednesday, June 13, 2007, the City opened the bids. Petitioner's bid was the low bid for the project. Its bid included a price of $1,816,224, as compared to the second lowest bidder, Guymann (whose bid came in at $1,987,561).1 The bids were then reviewed by Ttech for conformity to the Invitation to Bid. On July 31, 2007, Ttech notified the City that it was recommending approval of the Guymann bid despite Petitioner being the low bidder. The justification for that recommendation was as follows: The lowest apparent bidder on the project was Expertech Network Installation, Inc. (Expertech) with a total bid of $1,816,224.00. [Ttech] reviewed Expertech's bid package and found that the required list of at least five completed projects of the type as the Galvanized Water Main Replacement project was not included in the package. [Ttech] contacted Expertech concerning the incomplete bid package and requested that Expertech provided the required list of at least five projects completed by Expertech of similar type as the Galvanized Water Main Replacement project. The list provided by Expertech did not include any completed projects of the type as the Galvanized Water Main Replacement. On August 7, 2007, the City issued its Notice of Intent to Award, stating that the procurement division of the City would recommend award of the bid to Guymann as the most responsive, responsible bidder meeting the terms, conditions, and specifications set forth in the Invitation to Bid. Petitioner timely filed a Notice of Intent to Protest; its Formal Written Protest was timely filed on August 24, 2007, along with the required bond. There are three methods of drilling utilized for laying pipe in the ground: directional drilling, open cut drilling, and jack & bore drilling. A brief discussion of each is necessary in order to understand the dispute in this matter. Directional drilling is done utilizing a machine that is guided underground using steel rods. A person above ground with a sounding device directs the steel rods from one point to another. Directional boring is used when trenching or excavating is not practical. Directional boring minimizes environmental disruption. Jack & bore drilling (or auger drilling) is similar to directional drilling in that it has an entrance pit, and then the pipe is manually jacked along the desired path while simultaneously excavating the soil. It is often used in projects that have to go under existing roads or driveways. Open cut drilling is the old, traditional method of digging a trench in the ground and laying the pipe in the open cut. The Invitation to Bid, at page 10 of 53, included a request for each bidder to provide evidence of its experience with similar projects. Paragraph 5 asked for a list "of the last five projects of this type your organization has completed."2 Paragraph 6 asked for a list "of projects of this type that your organization is currently engaged in." The lists of projects were to be completed as set forth in a table attached to the Invitation to Bid. The table is recreated below: PROJECT YOUR CONTRACTOR REQUIRED ACTUAL NAME, TITLE CONTRACT OR SUB COMPLETION COMPLETION ADDRESS & AMOUNT DATE DATE & LOCATION PHONE # In its Bid, Petitioner provided a document entitled "Bidders Qualifications" in response to paragraph 5. The document was not on the table provided and was not entirely responsive to the information requested (i.e., it did not indicate whether Petitioner was contractor or subcontractor; there were no completion dates, and there were no contact persons). Nonetheless, the list contained eight completed projects. Those projects included two water main projects; the other six completed projects were telecommunication projects. While both types of projects would include drilling, there are distinct differences between the two. For example, water and wastewater projects require pressure testing, bacterial testing, and permitting that telecommunication projects do not. Petitioner's list also included projects that involved directional drilling. Since directional drilling was specifically prohibited in the galvanized pipe replacement project, those projects would not be deemed substantially similar in type.3 During the initial review of the bids, Ttech had specifically asked Petitioner to provide the required list of five completed projects of a similar type. In response, Petitioner submitted a list of four projects, which were listed as "Currently in Progress." Again, the projects were submitted on a form other than the table provided in the Invitation to Bid. When Ttech followed up with the project contacts, it found that there had been no open cut drilling on two of them; the other two had not yet begun. However, by the date of final hearing the projects were substantially complete. After Petitioner had submitted its list of projects, a meeting was called at the City. Petitioner was represented at the meeting along with City personnel and a representative from Ttech. Notes from that meeting, though inconclusive, seem to indicate that the requirement for five completed jobs of a similar nature was discussed. It is unclear whether Petitioner's representative was still at the meeting when this was discussed. However, it does not appear that anyone from the City or Ttech sent Petitioner a written request to provide evidence of additional work performed. Nor is there any evidence that the City or Ttech had an obligation to do so. At any rate, Petitioner did not submit any evidence of similar projects other than those discussed above. There were notes made by attendees of the meeting. None of the notes submitted into evidence was conclusive as to all issues that were discussed at that time. However, in notes relating to a telephone conversation five days later, Ttech's representative noted discussing with Petitioner the need to provide evidence of five similar projects, which means that at the time of the June 9, 2007, meeting, Ttech was still attempting to get the required list of projects from Petitioner. The projects submitted by Petitioner include directional drill excavation projects, which involved at least some open cuts (i.e., to make tie-ins at each end of the directional drill section). None of those projects was substantially similar in type to the proposed project, but did include some open cut work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the City of Cape Coral upholding its rejection of Petitioner's bid for the galvanized pipe replacement project. DONE AND ENTERED this 9th day of November, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 9th day of November, 2007.
