The Issue Whether the Respondent should have his fire sprinkler contractor license disciplined for violations of the statutes and rules as alleged by the Petitioner’s Second Administrative Complaint, and Whether, if the Petitioner does not prove the allegations against the Respondent, the Respondent should recover his attorney’s fees and costs.
Findings Of Fact The Department of Insurance and State Fire Marshall is charged with the licensure and regulation of fire protection system contractors. Ralph Hamm is now and was at all times relative to this case a certified fire protection system contractor holding certificate number 437539000188. Ralph Hamm is the president of W.F.P. Company, Inc. (WFP). As the certified contractor, he is responsible for the work done by the company. The Petitioner may discipline his license for violation of the code and statutes; however, the Petitioner does not license and has no jurisdiction over the company. The Department of Correction (DOC) let bids to install fire sprinkler systems in several of its facilities. WFP won several of these bids. These bids called for the design and installation of the systems based upon drawings of the facilities provided by DOC. The drawings accompanying the bid for Tomoka Correctional Institution (Tomoka) were incorrect, showing a structure similar to the Marion Correctional Institution, a job on which WFP had been the successful bidder. Tomoka’s maintenance and construction superintendent upon seeing the drawings prior to the receipt of bids, advised DOC’s project manager of the discrepancy in the drawings. The project manager acknowledged the problem, but advised that the bid would be published. It was the superintendent’s understanding that the contractor that won the bid would be permitted to build the system to fit the actual structure, and thereafter the work memorialized in “as built” drawings. This process was misleading to a bidder who accepted the drawings as accurate knowing that the Department had several prototype building designs which it replicated at its institutions based upon the nature of the facilities and topography. WFP, which had already designed a system for an identical building, could anticipate reusing its previous design, saving design costs, and presenting a lower bid. WFP won the contract. The record reveals that during the course of construction at Tomoka additional changes were made to include sprinkling rooms not originally indicated as being protected, altering the height of the pipes, changing the nature of the sprinkler heads from standard to institutional, and from hanging down (pendent) to being upright. NFPA 13, 1991 Edition, (NFPA) was the standard for the installation of the Tomoka sprinkler system. The bid for the Tomoka job called for all labor, materials, supervision equipment, services equipment, design and installation to comply with NFPA 13. In October 1995, Mr. Victor Higgs, a fire safety inspector with the State Fire Marshall’s Office (SFMO) with experience in general fire safety inspections, inspected Dorm B and Dorm E on the Tomoka job at the request of WFP during construction. Following his inspection, Higgs wrote a report finding essentially the same conditions in both dorms. Higgs found that the sprinkler installation was not in accordance with the on-hand drawings which had been approved by the SFMO; that hydraulic requirements for the systems as installed had not been recalculated; that there were no test certificates for the hydrostatic pressure of the above ground or below ground piping; that there was no indication of the type of sprinkler head to be used in the halls; and that smoke barriers had not been re-established where the pipes penetrated walls between areas. Of the observations made by Higgs, only the failure to re-establish the smoke barriers constituted a life threatening hazard prior to the conclusion of the job. The other conditions may have indicated an incomplete system, but did not increase the threat of fire. His other findings related to and were the result of having to do large portions of the job by change order. Higgs notified Ralph Hamm of his findings in October 1995. Subsequently, a conflict arose between the SFMO and WFP about the metal clamps being used by WFP to hold the pipe up against the ceilings and walls of the job. The personnel of the SFM advised WFP that the clamps were not to NFPA standard. The NFPA lists a number of approved clamps which a contractor may use or the contractor may use a clamp that has been tested and shown to hold five times the weight of the pipe with water in it plus 250 pounds. WFP asserted that the clamps it was using met the latter standard, but the SFM personnel wanted evidence of the testing. WFP wrote several letters regarding the clamps, but did not provide evidence of testing until after the administrative complaint was filed. In the meantime, WFP had replaced all of the clamps with a clamp listed in the NFPA, a Grinnel 262 pipe clamp, prior to the final approval of the job by the SFM. The test of the clamp originally used was conducted in accord with the standards provided to WFP’s engineer by Underwriter’s Laboratories, and showed that the clamp originally used met the strength requirements of the NFPA. A video of the test conducted by Foy Hamm was made and reviewed which shows the clamp holding a weight exceeding the NFPA standard. A conflict appears in the deposition testimony of WFP’s engineer, Gary West, regarding whether the clamp tested was the one originally used or the Grinnel 262. Foy Hamm, who conducted the test, testified that the clamp tested was the clamp WFP had originally used, and was not a Grinnel 262. The video was reviewed, and the clamp appears to be identical to those introduced at hearing and identified as clamps originally used by WFP. The test establishes that the original clamps met the NFPA standard when they were installed. Mezzapella, a fire safety inspector from SFMO, testified about as-built drawings, and stated that they had not approved by the SFMO. According to Mezzapella, as-built drawings are prepared by a contractor, approved by the SFMO and delivered to an owner who maintains them as a historical record. Gary West also testified about the procedure for approving as-built drawings of a job and re-certification of the drawings after changes have been made. The as-builts are not approved by the SFMO. Upon completion of the construction phase of the job, the as-built drawings are reviewed by the engineer, who makes new calculations as necessary, recommendations as necessary, and certifies the plans. Another of the alleged violations committed by WFP was failing to provide for drains in sections of the pipe installed that were lower than rest of the pipe. This condition resulted from DOC’s request that the height of the pipe be raised in the halls to prevent inmates from grabbing the pipes and swinging on them. As a result, in other places, such as the dayroom where the pipe had to be run under a major structural element of the building, the lower run of pipe would trap water. The NFPA provides that if more than five gallons of water can be trapped in such a low area, a drain must be provided; however, a pendent head may serve as such a drain. Ralph Hamm, the Respondent, drained the water in the dayroom area that was trapped, and it contained less than five gallons.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter a final order finding that the Respondent violated Section 633.539(1)(c), Florida Statutes, and fine the Respondent $1,000 for each of the three reported violations proven plus cost not to exceed $1,000. Further, that the Respondent be required to attend continuing education courses on the NFPA, and be placed on probation for one year from the date of the completion of said courses. And, further Respondent is not entitled to attorney's fees and costs. DONE and ENTERED this 6th day of June, 1997, in Tallahassee, Florida. STEPHEN F. DEAN 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 6th day of June, 1997. COPIES FURNISHED: Marc S. Nash, Esquire Department of Insurance 612 Larson Building Tallahassee, FL 32399-0333 M. Lee Fagan, Esquire Suite 31 One San Joe Place Jacksonville, FL 32257 Bill Nelson, State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, LL-26 Tallahassee, FL 32399-0300
The Issue Did the Respondent violate the provisions of Chapter 471, Florida Statutes, as alleged in the Administrative Complaint?
Findings Of Fact The Respondent is a licensed professional engineer. The Respondent holds license number PE 10214. The Respondent signed and sealed on or about November 15, 2001, a set of plans for the water fire sprinkler system for the new student gymnasium at Gulf Coast Community College consisting of three pages, and a set of calculations consisting of 14 pages for said sprinkler system. All discussions herein of sprinkler systems and the statutes related to such systems is limited to water-based systems. The calculations are intended to show that the performance of the sprinklers is sufficient in the area defined by the National Fire Protection Association (NFPA) standards as the hydraulically most demanding. The hydraulically most demanding area is the 1500 square feet fartherest away and highest from the "fire riser" or the source of water to feed to the system. The area defined as the hydraulically most demanding was identified on the plans as being in the southwest corner of the building, taking the top of the plan as pointing due north, or that portion of the building on the bottom, left corner of the building consisting of the women's showers and women's toilets. The calculations were generated by a computer based upon data provided on the size, height, length, and diameter of the pipes servicing the system and the number of sprinkler heads required in the hydraulically most demanding area. These calculations assume all the sprinkler heads in the hydraulically most demanding area will be activated, but no other sprinkler heads in the system will be activated. The calculations, Joint Exhibit 1, contained an error regarding the nodes and their length. See page 3 of Joint Exhibit 1, Nodes 20 and 25 at the bottom of the page. The best demonstrative evidence of the nature of the error is contained in Petitioner's Exhibit 3 in the diagram marked Piping Isometric. In sum, there should have been another node in the calculation of 61 feet. Testimony was received regarding the plans, their modification and actual construction of the system. The best presentation of the ultimate construction is represented in Respondent's Exhibit 1, which clearly shows two service pipes into the women's shower area. According to the uncontroverted testimony of the contractor, the intent was always to have two pipes servicing this area, one suspended under the other on the same set of supports, each pipe servicing the same number of heads in the area of the women's shower room. This was not adequately shown in the original drawings, and a second drawing clearly showing the two pipes was prepared to satisfy the general contractor. The calculations for the second pipe would be essentially the same as the first pipe because they are the same length and both have the same "load." There was testimony regarding new calculations supporting the plans, R-1, these calculations were introduced as R-2. They also show the pressure was adequate. The plans were approved by the State Fire Marshall's Office, by the Department of Education, and the Petitioner's expert witness opined that two pipes would supply sufficient water to service the area. Credible testimony was received that the quality and performance standards for valves, alarm checks, and switches were contained in the specifications provided to the bidders by the general contractor. These were not necessary in the Respondent's plan. Credible testimony was received that the entire project had one classification of hazard occupancy, as stated on the calculations, Joint Exhibit 1. No credible evidence was received that electrical or mechanical rooms have a different hazard occupancy and should have been treated any differently. The Board's witness testified that one of the design approaches is hydraulic calculation, See Tx 75-75. It is clear from the calculations, Joint Exhibit 1, that this was the method used. The installation of the backflow preventer was the responsibility of the general contractor and not part of the Respondent's responsibility. Further, pipes, valves, etc., were contained in the general contractor's specifications. Lastly, there is a four-inch check valve shown in the detail for the fire riser, which is a four-inch pipe and is the responsibility of the Respondent. The source of water is city water, which is treated. There would be no microbial corrosion concerns. The first page of the plans marked Petitioner's Exhibit 1, shows the fire riser as being located in the northwest corner of the building. The second and third pages show the fire riser as being located in the northeast corner of the building. Testimony was received concerning the modification of the plans to conform to the location of the fire main. Except for computation of the hydraulically most demanding area, location of the riser is not particularly important. The location of the fire riser was in fact, on the northeast corner, and this was the location used for calculation of the hydraulically most demanding area. The "as built" drawings, Petitioner's Exhibit 2, clearly show the riser in its proper location. To the extent that page one fails to reflect the same location as pages two and three, it is of no real significance. Under the contract for the sprinkler system, the general contractor was responsible for providing water to the fire riser and the sprinkler contractor was responsible for the system from that point. In sum, the plans incorporated those specifications given. Section 633.021(18), Florida Statutes, defines the "point of service" as the point at which the underground piping for a sprinkler system using water as the extinguishing agent becomes used exclusively for the sprinkler system. The statute provides that the point of service is designated by the engineer who sealed the plans for a system of more than 50 heads. The Respondent was not responsible for designing or presenting plans for the underground water service "mainward" of the fire riser. The riser by definition is not underground service. Therefore, the Respondent was not responsible for that portion of the total system at which the point of service would have been designated. No evidence was presented to establish that the definition of point of service creates a requirement for an engineer designing sprinkler design to control the system design to that point. No evidence was presented regarding the practices of the profession when this factual situation arises. No evidence was presented on the importance of the point of service in terms of a sprinkler system, and no testimony was offered regarding how an engineer would sign and seal plans that were beyond the scope of the work he was engaged to do. Special Findings Regarding the Various Sets of Plans As stated above, there were several sets of plans introduced at hearing. Petitioner's Exhibit 1 was identified as the set of plans signed and sealed by the Respondent; however, there was no evidence that these plans were used to build any portion of the project. In fact, the testimony was to the contrary, that these plans were expected to be modified and were modified prior to construction. Petitioner's Exhibit 2 was identified by Mr. Caldwell as a set of plans which he "red lined" as "as built" drawings after the construction was completed. He did not identify what iteration of the original plans he used; however, inspection and comparison show that they are virtually identical to the set, Petitioner's Exhibit 1. Mr. Caldwell qualified his additions to the plans to state that they reflected only what he could see without removal of tiles or materials. Respondent's Exhibit 1 was identified by Chris Thomas as being plans that were amended to address the concerns of Mr. Schmidt. These plans show two pipes where the original plans showed one pipe servicing the women's shower room. Because of the delay in prosecuting this case and the losses due to storms these plans are received and accepted as definitive because to do otherwise would raise due process issues the Petitioner having been aware of the alleged problems since before the plans were executed. No evidence was received regarding the customary practice in signing and sealing multiple versions of plans. There was no evidence presented regarding amended calculations in support of the drawings. In the absence of such testimony, it is concluded that only one set of calculations were prepared, and they were determined by the approving authorities to be sufficient. The Respondent admits that he did not date the calculations or the plans.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Board dismiss the complaint against the Respondent. DONE AND ENTERED this 13th day of October, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 13th day of October, 2005. COPIES FURNISHED: Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Bruce A. Campbell, Esquire Florida Engineers Management Corp. 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303 Alvin L. Petters, Esquire Peters and Scoon 25 East 8th Street Panama City, Florida 32401 Doug Sunshine, Esquire V.P. for Legal Affairs Florida Engineers Management Corp. 2507 Callaway Road Tallahassee, Florida 32303-5267 Paul J. Martin, Executive Director Florida Engineers Management Corp. 2507 Callaway Road Tallahassee, Florida 32303-5267
The Issue The basic facts are not really disputed. Petitioner has many years experience as a plumber. The law is controverted. The agency says the required experience as a contractor must be with a fire sprinkler contractor. The Petitioner argues the statute does not define "contractor," and its common meaning would include plumbing contractor. Evidence was received that the agency has long held "contractor" to be limited to fire sprinkler installation contractors, and that this is based upon the special expertise required in design and installation of these systems. The argument of the Respondent that "contractor/ contracting" as it is used in the statute generally applies to fire sprinkler contractors is more persuasive based upon the evidence. The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
Findings Of Fact Mr. Frederick Hagen applied with the Department of Insurance, Office of the State Fire Marshal, to take the written examination for a license to engage in the business of designing and installing fire protection systems as a Contractor II, type 7, class 12, as defined by Section 633.021(5)(b), Florida Statutes. On July 8, 1985, his original application was hand- delivered back to him for failure to submit the appropriate application fee and the appropriate application form. Mr. Hagen's application was denied by the Department of Insurance, Office of the State Fire Marshal because he did not submit evidence of four years proven experience as required by Section 633.521(3), Florida Statutes. On August 8, 1985, Mr. Hagen requested a formal hearing on the denial of his application. At the hearing on November 12, 1985, Mr. Hagen submitted an original application and the appropriate fee to the Department of Insurance, Office of the State Fire Marshal. Petitioner's application was denied in accordance with long-standing agency policy because he did not submit evidence to show that he had the requisite experience as a fire sprinkler installation contractor or the educational background, or a combination thereof to be allowed to sit for the examination. (Transcript pages 16,17; Petitioner's Exhibit 1) At all times material herein, Frederick D. Hagen held a license from the Construction Industry Licensing Board and has been a plumbing contractor for over 12 years. (Transcript pages 25, 26) As a licensed plumbing contractor, he has been involved in the supervision of and actual installation of fire line stand pipes and fire sprinklers to the extent authorized by law. Petitioner submitted no evidence at the hearing of his education and experience in the design of sprinkler installations. Petitioner indicated that he considered the design of these systems as similar to design of a plumbing system, given the building codes and plans. Design of sprinkler installations is integral to the work performed by a Contractor II, type 7, class 12. Design of sprinkler installations is based upon codes plus experience received in working in the profession. Employees of these specialized contractors receive special educational training in design of systems. Experience of a plumbing contractor in reading codes and applying them in installing plumbing systems would be inadequate experience to qualify one to design a sprinkler system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that Mr. Hagen's application for examination to engage in the business of fire protection systems as a Contractor II, type 7, class 12, be DENIED. DONE AND ORDERED this 10th day of December 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December 1985.
The Issue The legal issue in this case is whether Respondent, as prime engineer of record for the owner, was negligent in the practice of engineering because he drafted performance specifications for a specialty contractor to hire an experienced wet sprinkler fire system engineer, who would, as the delegated engineer to the prime engineer, design, sign and seal a wet sprinkler fire system to be submitted to the prime engineer for his final approval.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received in evidence, the parties' stipulations of facts, and the entire record complied herein, the following relevant and material facts are found: Petitioner is charged with regulating the practice of engineering. See Chapters 455 and 471, Florida Statutes. Petitioner, in this case, is also charged with providing administrative, investigative, and prosecutorial services to the Board. See Section 471.038(3), Florida Statutes. Respondent is and has been at all times material hereto a licensed professional engineer in the State of Florida. He was first licensed in Florida in 1984, and his license number is 35071. His areas of engineering discipline include mechanical, electrical, and chemical engineering. Based upon his qualification and knowledge in the discipline of chemical engineering, Mr. Newton routinely designed dry fire systems which are traditionally used in construction of school projects. Mr. Newton is also licensed in Georgia, South Carolina, Texas, and Louisiana. In the 18 years Mr. Newton has been licensed as a professional engineer, this proceeding is the only disciplinary action taken against his license. Mr. Newton's professional affiliations include American Arbitration Association, where he acts as an arbitrator involving construction disputes. Mr. Newton provides engineering and related services as principal engineer and president through Engineering Matrix, a St. Petersburg-based engineering company he formed in 1985. Engineering Matrix regularly employs approximately 30 persons, consisting of engineers and technical support staff. The number of employees may increase up to 35 or more persons when business demands additional services. Approximately 40 percent of Engineering Matrix's past and present work is education-related and/or school projects from elementary and middle schools up to and including the university level. At the time of this proceeding, Engineering Matrix had at least 10 to 15 school projects on their boards, about half of which are new schools, all located within the area of Sarasota, Manatee, and Pinellas Counties. The Manatee County School Board (Owner) let for bid two elementary school construction projects. The Owner selected a Design Team consisting of architects, Allen Architects, Inc. (Allen Architects); a prime engineer, Engineering Matrix, Inc. (Engineering Matrix); and two construction managers, Creative Contractors for Ballard Elementary School and Willis A. Smith Construction, Inc., for Samoset Elementary School. Engineering Matrix, as the project's prime professional engineer, was responsible for all matters relating to electrical, mechanical, and fire protection engineering issues. At some undetermined point in time during finalization of the design phase of the projects, the Owner changed from the original proposed dry fire system to a wet sprinkler fire system. The Owner's design change resulted in Respondent's proposal that Engineering Matrix, his company, could accommodate the change for additional compensation over and above the contract price. The Owner rejected Respondent's proposal. As the prime engineer for the projects, Mr. Newton prepared performance specifications for a non-engineering specialty contractor to hire an experienced wet sprinkler fire system engineer. At the time Mr. Newton prepared the performance specifications, the identification of the wet sprinkler fire system engineer was not known. The performance specifications directed the wet sprinkler fire system engineer to design the wet sprinkler fire system documents. He would sign and seal the design documents and submit them to Mr. Newton for review and ultimate approval. Two fire protection specialty contractors were hired. James Curtis, P.E., was hired and designed the system for the Ballard Elementary School project. Frank B. Williams, P.E., was hired and designed the system for the Samoset Elementary School project. Each engineer signed, sealed, and submitted his respective designs to Mr. Newton for his review and approval. Both approved wet sprinkler fire systems were permitted by Manatee County's building department, approved by the county's fire marshal's office, installed and thereafter passed inspection. There is no evidence of record that a complaint was made regarding the wet sprinkler fire systems installed on these two projects. During or near the completion of the school wet sprinkler fire system construction, a disappointed bidder filed a complaint with the Board. As a result of the complaint, the Board mailed to Mr. Newton a letter of inquiry to which Mr. Newton made a written reply. Mr. Newton and Mr. Allen have worked together professionally on construction projects for over 15 years beginning in 1985. As a consequence, they have developed a comfortable and confident professional working relationship. Based upon their long relationship and their past successes, they will often seek the other's availability when projects are posted for bidding. Allen Architects, by and through Mr. Allen, was in direct contract privy with the Owner, so also were the construction managers, Creative Contractors of Clearwater, Florida, for Ballard Elementary School and Willis A. Smith Construction, Inc., for Samoset Elementary School. The Owner determined that a wet sprinkler fire system would be more economical than a dry fire system and directed Allen Architects to incorporate a design change. The original design plans included a dry fire system which Mr. Newton expected he would design as he had on other school projects.2 At this point in the design process, as the prime engineer and engineer of record for mechanical and electrical matters, Mr. Newton prepared performance specifications requirements for approval of a wet sprinkler fire system engineer. This 12-page document included requirements that the system conform to Sections 13 and 14 of the National Fire Protection Association (NFPA) standards.3 Mr. Newton's testimony reflects his sincere and professional efforts to comply with the design change and with his understanding, past experience, and interpretation of the spirit of his professional obligations as prime engineer for the project. Mr. Newton's performance specifications required that the specialty contractor provide a complete, approved wet sprinkler fire system, designed by a contractor who currently possessed five years of continuous experience, and that shop drawings, hydraulic calculations, etc., be signed and sealed by a Florida registered engineer and submitted to Mr. Newton for his final approval before construction. In Section B of his performance specifications document, Mr. Newton included the following: "Pursuant to FS 471.033(2) and Rules 61G15-30 and 32, the Fire Protection Contractor shall be required to provide detailed fire protection construct drawings to be signed and sealed by a Florida Registered Fire Protection System Design Engineer acting as the delegated Engineer to the Prime Engineer as part of this scope." This section of the performance specifications is the subject of the Board's Administrative Complaint. In accordance with Mr. Newton's performance specifications, signed and sealed wet sprinkler fire system designs were prepared. One system was prepared by Creative Construction and one system was prepared by Willis A. Smith Construction, Inc. Both systems were submitted to Engineering Matrix, approved, and installed in Ballard and Samoset Elementary Schools. Mr. Curtis and Mr. Williams, experienced professional engineers in wet sprinkler fire systems, testified without contradiction, that the language employed by Mr. Newton in Section B herein above regarding the wet sprinkler fire system specifications is common in the industry regarding construction and engineering practices in the local Manatee-Sarasota areas. Neither Mr. Curtis nor Mr. Williams experienced difficulty or confusion in understanding his engineering tasks. The Board's expert, Mr. Galvez, found no deficiency in the wet sprinkler fire system engineering for either the Ballard Elementary School project or the Samoset Elementary School project. This fact confirms the reasonable assumption that two experienced engineers understood the written communication from Mr. Newton without the benefit of face-to-face communication with him prior to their designing the wet sprinkler fire system for these two projects. All witnesses agreed that there are three traditional and accepted industry methods engineers have used on projects: the design approach in which the engineer of record prepares the plans and specifications, provides those documents to a contractor who prepares shop drawings that are then sent back to the engineer of record for compliance specification review and approval, and if approved, documents are provided to the construction engineer for installation; (2) the performance approach in which the engineer of record prepares a set of complete, clear and sufficient criteria and provides those criteria to a contractor who prepares shop drawings that are returned to the engineer of record for compliance specifications review and approval, and if approved, then returned for construction installation; and (3) the design-build approach in which a company, possessing a certification of authorization to provide engineering services via a contracted professional engineer, its employees/consultants, provides both design and installation of engineering projects for the company. The witnesses further agree that none of the three approaches, however, are mandated by Florida Statutes or by administrative rule. Significant is the fact that the parties agree there are no reported cases that have held that an engineer of record cannot delegate fire protection engineering design entirely to a fire protection engineer or fire protection engineering company. Equally as significant is the fact that the parties agree that no reported case has held that an engineer of record cannot delegate any entire subset of a project to another engineer licensed in the delegated subset area of engineering. The effect of this significance is that it compels the Board to establish an accepted, recognized, and enforceable industry standard and prove that Mr. Newton's conduct violated that standard. Mr. Newton chose not to use the traditional design approach, the performance approach, or the design-build approach. He required the specialty contractor to seek and hire only a registered engineer, with specific experience in the engineering discipline of wet sprinkler fire systems. The selected engineer was required to design a wet sprinkler fire system. Mr. Newton's method of delegating the engineering responsibility to design a wet sprinkler fire system for his approval as the prime engineer resulted in a wet sprinkler fire system that was completed, installed, inspected, and found without fault at both the Ballard and the Samoset Elementary School projects. From design to completion, Mr. Newton was the prime engineer for the projects. In that capacity, Mr. Newton had responsible charge for the wet sprinkler fire system from its design to its installation. First, the design was required to be drafted only by an experienced wet sprinkler fire system engineer who would sign and seal his professional work product. Mr. Newton retained sole authority to review, suggest change, and, finally, approve the work product of the engineer of record prior to construction. The evidence of record reflects that at no time during the design to approval and construction process of these two projects was Mr. Newton not in responsible charge for the wet sprinkler fire system by maintaining final engineering authority. Petitioner's expert, Mr. Galvez, a licensed engineer since 1983, has extensive experience in fire protection as an employee of a professional engineering company, Schirmer Engineering, in Miami, Florida, and his professional industry experience has been restricted to the South Florida area. He is a member of the National Fire Protection Association; the American Society of Heating, Refrigeration, and Air Conditioning; Society of Fire Protection Engineers; and the American Society of Mechanical Engineers. Mr. Galvez, however, is not certified by examination in the sub-discipline of fire protection engineering. He has never delegated a wet sprinkler fire system to another engineer, but has had the discipline continuously delegated to him by his employer. In Mr. Galvez's opinion, Mr. Newton's written performance criteria to the specialty contractor to hire an experienced wet sprinkler fire system engineer to design, sign and seal plans did not provide enough direction in the field of delegated engineering because it was an improper delegation of engineering obligation and responsibility. Mr. Galvez opined that Mr. Newton improperly delegated the design responsibility to a non-engineering contractor. Second, in writing the performance specifications, Mr. Newton made himself the "single point of contact," a standard established by the National Society of Professional Engineers. According to Mr. Galvez, following Mr. Newton's "single point of contact" position as a result of writing the performance specifications, the moment Mr. Newton inserted the non-engineering specialty contractor between himself and the design engineer in the performance specifications, he violated the National Society of Professional Engineers' "single point of contact" standard. Mr. Galvez's opinion, however, is nullified by his acknowledgment and admission that the "single point of contact" standard enacted by the National Society of Professional Engineers does not govern Mr. Newton's professional engineering conduct in Florida. Mr. Galvez's second opinion of a "delusional standard"4 violated by Mr. Newton suffers a similar fate as his first "single point of contact" opinion standard. Mr. Galvez further opined that the method employed by Mr. Newton, delegation from himself to (1) a contractor, (2) who would hire an engineer to design, sign and seal, and (3) return to the contractor to (4) return to Newton for his review and approval, was a "delusional" delegation of the "single point of contact" engineering responsibility of the prime engineer of record for these projects. Again, Mr. Galvez's standard of "delusional" delegation is not found in the Florida Statutes nor in the Florida Administrative Code nor has it been accepted, adopted, and reported as an engineering standard by a Florida court. The record contains no evidence of any recognized professional engineering organization in Florida that recognized a standard of "delusional" delegation by a professional engineer. There was no evidence presented at the hearing which would suggest Mr. Newton acted on a false belief, in spite of invalidating evidence to the contrary in drafting the performance specifications. Viewed most favorably, the Board, by the presentation of the opinion testimony of Mr. Galvez regarding "standards" for the delegation of engineering design responsibilities from one engineer to another engineer, has failed to establish by clear and convincing evidence that Mr. Newton was guilty of negligence as alleged by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Board of Professional Engineers enter a final order finding Respondent, Stanley P. Newton, P.E., not guilty of negligence in the practice of engineering as alleged in the Administrative Complaint filed in this cause. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2002.
The Issue The issue in this case is whether Respondents illegally or improperly conducted testing of backflow prevention devices on fire line assemblies, and, if so, whether Petitioner should issue a Cease and Desist Order.
Findings Of Fact The Department, through its chief financial officer, who also acts as the state fire marshall, is the state agency responsible for, inter alia, the certification, licensing and monitoring of persons who engage in the business of layout, fabrication, installations, inspection, alteration, repair, or service of fire protection systems (other than pre-engineered systems). Respondents2 are licensed by the Florida Department of Business and Professional Regulation ("DBPR") as a certified plumbing contractor, License No. CFC054896-00012. Respondents are not certified by the Department to engage in the business of layout, fabrication, installations, inspection, alteration, repair, or service of fire protection systems (other than pre- engineered systems). As of the date of the final hearing, Respondents had not filed an application to be so certified. On or about June 29, 2006, Respondents conducted the annual Backflow Prevention Assembly Test inspection and maintenance on a backflow prevention device installed on a fire sprinkler fire line located at the University Park Country Club Clubhouse, 7651 and 7671 The Park Boulevard, University Park, Florida. The University Park Country Club Clubhouse is located within the Southern Manatee Fire and Rescue District. After performing the test at the University Park Country Club, Respondents issued a Backflow Prevention Assembly Test and Maintenance Report, and a copy was sent to the Manatee County Cross Connection Control Coordinator. At the conclusion of the test, Respondents determined the backflow device to be operating appropriately and placed an inspection tag on the device. On or about September 4, 2006, Respondents conducted the annual test on a backflow prevention device installed on a fire sprinkler fire line located at the Chiquita Banana Warehouse, 4610 18th Street East, Bradenton, Florida 34203. The warehouse is also located within the Southern Manatee Fire Rescue District. After performing the test, Respondents issued a Backflow Prevention Assembly Test and Maintenance Report. This report was also forwarded to the Manatee County Cross Connection Control coordinator. Respondents also placed an inspection tag on the backflow prevention device. On or about September 4, 2006, Respondents conducted the annual Backflow Prevention Assembly Test inspection and maintenance on a device located at the Manatee County Rural Health Services Treatment Center, 1515 26th Avenue East, Bradenton, Florida 34208. This center is also located within the Southern Manatee Fire Rescue District. Upon completion of the test, Respondents placed an inspection tag on the device and forwarded a Backflow Prevention Assembly Test and Maintenance Report to the Manatee County Cross Connection Control coordinator. On or about September 6, 2006, Respondents conducted the annual test on a backflow prevention device located at Sam's Warehouse Club, 5300 30th Street East, Bradenton, Florida 34203. The Sam's Warehouse Club is also located within the Southern Manatee Fire Rescue District. Upon completion of the test at Sam's Warehouse Club, Respondents placed an inspection tag on the device and forwarded a Backflow Prevention Assembly Test and Maintenance Report to the Manatee County Cross Connection Control coordinator. The backflow prevention devices inspected by Respondents are tied into domestic water lines which provide water to the surrounding community. It is imperative to keep the domestic water as clean and pure as possible. Backflow prevention devices serve the purpose of keeping contaminated or unclean water from re-entering the domestic water lines. It is extremely important that all backflow prevention devices be inspected and maintained on a regular basis. Testing of backflow prevention devices on designated fire lines (i.e., those lines connecting the domestic water line to a sprinkler system or other fire prevention system) is done by entities which have received a certification from the Department. The Department requires certified individuals to carry liability insurance coverage. The purpose of such coverage is to ensure that there will be money to correct any mistakes made by the certified inspectors. If a backflow system fails, the Department will immediately inspect to determine if the certified contractor made a mistake. If so, the contractor and his insurer will be required to pay for all damages and corrective action needed. The Department does not have any authority over plumbing contractors who have not been certified by the Department. Respondents routinely perform inspections and maintenance on backflow prevention devices. Respondents do not, in their own estimation, perform inspections on fire protection systems. Respondents maintain that fire protection systems start at a point just beyond the backflow prevention devices. Respondents are not certified by the Department to perform inspections and maintenance on fire protection systems. However, based on a letter from the Office of the Attorney General to Ruth Tirado, executive director of the Florida Association of Plumbing, Heating and Cooling Contractors, Respondents believe they are authorized to inspect backflow prevention devices that exist on a fire sprinkler line. The letter, dated February 3, 2004, states in pertinent part: Re: Your inquiry regarding back flow prevention presented to the Construction Industry Licensing Board at the meeting of January 15, 2004. * * * After review, and based upon the documentation presented, the Construction Industry Licensing Board has determined that back flow prevention is within the scope of work of a plumbing contractor. Please keep in mind that this opinion is based solely on the facts set forth in your letter and is not intended to be an opinion of general applicability. Furthermore, the Board has not conducted an independent factual investigation to determine whether other relevant facts do or may exist or whether the facts set forth in your letter may be governed by laws or rules other than Chapter 489, Part I, Florida Statutes and 61G4, Florida Administrative Code. It is clear the attorney general letter does seem to place backflow prevention within the "scope of work" of a plumbing contractor. However, there is no way to determine whether the opinion included any limitations, restrictions, or caveats, since the underlying letter it addresses was not placed into evidence. Nor is there any distinction in the letter concerning backflow prevention devices that are part of a fire sprinkler line. In October 2006, Henry Sheffield, deputy fire chief for the East Manatee Fire Rescue District, initiated a complaint against three plumbers relating to "fire line backflow preventers." A DBPR Uniform Complaint Form addressing one of the plumbers (a Mr. Jackson) indicates an alleged violation of Subsection 489.105(3), Florida Statutes. That statutory section deals with the scope of work for various kinds of contractors. A DBPR Uniform Complaint Form alleging violation of Section 633.021, Florida Statutes, is attached to the complaint form, but the DBPR Uniform Complaint Form does not indicate whether it relates to Mr. Jackson or one of the other plumbers. Also, admitted into evidence is a DBPR letter indicating dismissal of the complaint by one of the three plumbers (Mr. Wolf) relating to alleged violations of Chapter 489, Florida Statutes. The complaints against the three plumbers in 2006 may or may not be related to the same issues facing Respondents, but there is no way to connect them based upon the evidence presented at final hearing. The Department interprets Florida Administrative Code Rule 69A-46.040(2) to mean that the "point of service" for purposes of fire line backflow prevention to be the domestic water line where the fire line is tied in. That is, once there is a tie-in to the domestic water line, the Department has jurisdiction. This interpretation is reasonable and is based on the Department's experience over a number of years. Respondents maintain that the point of service begins immediately after the backflow prevention device. Therefore, they believe any work done on the backflow prevention device can be performed by a licensed plumbing contractor whether they have Department certification or not. This interpretation is not supported by the evidence presented. Respondents did not intentionally violate any provision of Chapter 633, Florida Statutes. All work performed by Respondents was done under the apparent authority given them by a state agency, the Construction Industry Licensing Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Financial Services, ordering Respondents, Backflow Division of Systems Groups, Inc., and Robert H. Richey, Sr., to cease and desist from performing inspections and maintenance of backflow prevention devices on fire protection systems until such time that Respondents obtain the required certification to do so. DONE AND ENTERED this 26th day of February, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 February, 2009.
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.
