98-001010 Board Of Professional Engineers vs. Pab Consultants, Inc. Status: Closed Recommended Order on Thursday, September 17, 1998.

Summary: Comp. falsely represented that a prof. engineer was employed by it when comp. submitted its application for a certificate of authorization to offer prof. engineering services to the public. Recommended certification be revoked and comp. fined $1,000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF PROFESSIONAL ENGINEERS, )

)

Petitioner, )

)

vs. ) Case No. 98-1010

)

PAB CONSULTANTS, INC., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, William J.

Kendrick, held a formal hearing in the above-styled case on

July 22, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Harold M. Knowles, Esquire

Knowles, Marks & Randolph, P.A.

215 South Monroe Street, Suite 130

Tallahassee, Florida 32301

For Respondent: Brant Hargrove, Esquire

1026 East Park Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed

the offenses set forth in the Administrative Complaint and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated December 18, 1997,

Petitioner charged that Respondent, a corporation authorized

(certified) to offer professional engineering services, violated

the provisions of Section 471.033(1)(b), Florida Statutes, by

obtaining or attempting to obtain, on one or more occasions, a

certificate of authorization or amended certificate of

authorization based on fraudulent representations.

Respondent filed an election of rights which disputed the

factual allegations contained in the Administrative Complaint,

and Petitioner referred the matter to the Division of

Administrative Hearings for the assignment of an administrative

law judge to conduct a formal hearing pursuant to Sections

120.569, 120.51(1), and 120.60(5), Florida Statutes.

At hearing, Petitioner called Jerry Wilson, Mary Miller, and

Dorothy Ann Barcia as witnesses, and Petitioner's Exhibits 1

through 9, 11, 15 through 18, and 20 through 25, were received

into evidence. 1 Respondent's Exhibit 1 was offered and received

into evidence; however, Respondent offered no additional proof. 2

The hearing transcript was filed August 7, 1998, and the

parties were accorded ten days from that date to file proposed

recommended orders. Neither party elected to file such a

proposal.

FINDINGS OF FACT

1. Pertinent to this case, Section 471.023, Florida

Statutes, provides:

(1) The practice of, or the offer to

practice, engineering by registrants through

a corporation . . . offering engineering

services to the public or by a corporation

. . . offering said services to the public

through registrants under ss. 471.001-471.037

as agents, employees, [or] officers, . . . is

permitted only if the firm possesses a

certification issued by the [D]epartment [of

Business and Professional Regulation]

pursuant to qualification by the [B]oard [of

Professional Engineers], subject to the

provisions of ss. 471.001-471.037. One or

more of the principal officers of the

corporation . . . and all personnel of the

corporation . . . who act in its behalf as

engineers in this state shall be registered

as provided by ss. 471.001-471.037. . . .

* * *

(4) . . . Each . . . corporation certified

under this section shall notify the board

within 1 month of any change in the

information contained in the application upon

which the certification is based.

2. On February 16, 1993, PAB Consultants, Inc. (PAB), 3

filed an application (dated February 11, 1993) with the

Department of Professional Regulation (now known as the

Department of Business and Professional Regulation), Board of

Professional Engineers (Department), for authorization to offer

professional engineering services as a corporation.

3. Pertinent to this case, sections 9 and 10 of the

application requested the name, address, and license number of

Florida registered engineers employed by the corporation (one of

which was required to be a principal officer of the corporation).

PAB responded as follows:

Irwin Schram 22779 Meridiana Drive, Boca Raton, FL 407118 (sic) [40718]

Name Address Lic. #

Dana E. Smith 90 Isle of Venice, FT. Lauderdale, FL 0039633

Name Address Lic. #

___________________________________________________________

Name Address Lic. #

4. Dana Smith was, at the time, a principal officer

("Director of Engineering Services") of PAB; however, Irwin

Schram was not, and never had been, employed by PAB, and the use

of his name and registration by PAB was not known or authorized

by him. In sum, the naming of Irwin Schram as an employee of PAB

was an intentional and untruthful act. 4

5. On February 17, 1993, PAB's application was approved and

it was issued a certificate of authorization (certificate number

EB-0006493) which permitted individually registered professional

engineers to offer professional services to the public through

PAB. More particularly, the certificate of authorization

provided:

WHEREAS PAB CONSULTANTS, INC. HAS MET THE

REQUIREME NT OF CHAPTER 471.023, FLORIDA

STATUTES, FLORIDA STATE BOARD OF PROFESSIONAL

ENGINEERS AUTHORIZES THE SAID CORPORATION TO

OFFER TO THE PUBLIC PROFESSIONAL ENGINEERING

SERVICES OF THE FOLLOWING LISTED INDIVIDUALS:

IRWIN SCHRAM #PE0040718

DANA E. SMITH #PE0039633

6. On April 6, 1995, PAB filed an application (dated

April 3, 1995) with the Department for an amended certificate of

authorization. Sections 9 and 10 of the application again

required the name, address, and license number of Florida

registered engineers employed by PAB (one of which was required

to be a principal officer of the corporation). PAB responded as

follows:

Irwin Schram 22779 Meridiana Drive, Boca Raton, FL 407118 (sic) [40718]

Name Address Lic. #

Dana E. Smith 90 Isle of Venice, FT. Lauderdale, FL 0039633

Name Address Lic. #

Javier Rodriquez 10870 SW 26th Ct, Davie, FL 0048264

Name Address Lic #

7. At the time, Javier Rodriquez was the principal officer

("Director of Engineering") of PAB, having replaced Dana Smith;

however, as with the prior application, Irwin Schram was not, and

never had been, employed by PAB and the use of his name and

registration by PAB was not known or authorized by him. 5 Again,

the naming of Irwin Schram as an employee of PAB was an

intentional and untruthful act.

8. On April 7, 1995, PAB's application was approved and it

was issued an amended certificate of authorization (still

certificate number EB-0006493). The amended certificate

provided:

WHEREAS PAB CONSULTANTS, INC. HAS MET THE

REQUIREME NT OF CHAPTER 471.023, FLORIDA

STATUTES, FLORIDA STATE BOARD OF PROFESSIONAL

ENGINEERS AUTHORIZES THE SAID CORPORATION TO

OFFER TO THE PUBLIC PROFESSIONAL ENGINEERING

SERVICES OF THE FOLLOWING LISTED INDIVIDUALS:

IRWIN SCHRAM #PE0040718

DANA E. SMITH #PE0039633

JAVIER RODRIGUEZ #PE0048264

9. On September 11, 1995, PAB filed an application (dated

September 6, 1995) with the Department for an amended certificate

of authorization. Sections 9 and 10 of the application again

required the name, address, and license number of Florida

registered engineers employed by PAB (one of which was required

to be a principal officer of the corporation). PAB responded, as

follows:

Irwin Schram 22779 Meridiana Drive, Boca Raton, FL 407118 (sic) [40718]

Name Address Lic. #

Dana E. Smith 90 Isle of Venice, FT. Lauderdale, FL 0039633

Name Address Lic. #

David S. Rivera 11591 SW 9th Court, Pembroke Pines, FL 0033886

Name Address Lic. #

10. At the time, David S. Rivera was the principal officer

(Senior Vice-President) of PAB, having replaced Javier Rodriquez;

however, as with the prior application, Irwin Schram was not, and

never had been, employed by PAB, and the use of his name and

registration by PAB was not known or authorized by him. 6 Again,

the naming of Irwin Schram as an employee of PAB was an

intentional and untruthful act.

11. On September 28, 1995, PAB's application was approved

and it was issued an amended certificate of authorization (still

certificate number EB-0006493). The amended certificate

provided:

WHEREAS PAB CONSULTANTS, INC. HAS MET THE

REQUIREME NT OF CHAPTER 471.023, FLORIDA

STATUTES, FLORIDA STATE BOARD OF PROFESSIONAL

ENGINEERS AUTHORIZES THE SAID CORPORATION TO

OFFER TO THE PUBLIC PROFESSIONAL ENGINEERING

SERVICES.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. Sections 120.569, 120.57(1), and 120.60(5),

Florida Statutes.

13. Where, as here, the Department proposes to take

punitive action against a licensee, it must establish grounds for

disciplinary action by clear and convincing evidence. Section

120.57(1)(h), Florida Statutes (1997), and Department of Banking

and Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

That standard requires that "the evidence must be found to be

credible; the facts to which the witnesses testify must be

distinctly remembered; the testimony must be precise and explicit

and the witnesses must be lacking in confusion as to the facts in

issue. The evidence must be of such weight that it produces in

the mind of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought to

be established." Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983).

14. Regardless of the disciplinary action sought to be

taken, it may be based only upon the offenses specifically

alleged in the administrative complaint. See Kinney v.

Department of State , 501 So. 2d 129 (Fla. 5th DCA 1987);

Sternberg v. Department of Professional Regulation, Board of

Medical Examiners , 465 So. 2d 1324 (Fla. 1st DCA 1985); and

Hunter v. Department of Professional Regulation , 458 So. 2d 844

(Fla. 2d DCA 1984). Moreover, in determining whether Respondent

violated the provisions of Section 471.033(1)(b), Florida

Statutes, as alleged in the Administrative Complaint, one "must

bear in mind that it is, in effect, a penal statute. . . . This

being true, the statute must be strictly construed and no conduct

is to be regarded as included within it that is not reasonably

proscribed by it." Lester v. Department of Professional and

Occupational Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA

1977).

15. Pertinent to this case, Section 471.023(5), Florida

Statutes, provides that where, as here, a corporation has been

issued a certificate of authorization to offer engineering

services to the public, it is subject to "[d]isciplinary action

. . . in the same manner and on the same grounds as disciplinary

action against a registered engineer."

16. Disciplinary proceedings against registered engineers,

and corporations such as Respondent, are governed by Section

471.033, Florida Statutes. Here, the Department contends PAB is

guilty of "[a]ttempting to procure a license to practice

engineering by . . . fraudulent misrepresentations," as

proscribed by Section 471.033(1)(b), Florida Statutes, because it

misrepresented, on its various applications for certification,

that Irwin Schram was employed as a professional engineer by PAB.

17. To establish that a licensee committed a violation of

Subsection 471.033(1)(b), Florida Statutes, the Department must

show not only that the licensee provided false or misleading

information on its application, but that it did so knowingly and

intentionally. Munch v. Department of Professional Regulation ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 1992), ("[A]pplying to the

words used [in Section 471.033(1)(b)] their usual and natural

meaning, it is apparent that it is contemplated that an

intentional act be proved before a violation may be found.").

Accord, Walker v. Department of Business and Professional

Regulation , 23 Fla. L. Weekly D292 (Fla. 5th DCA 1998), and

Gentry v. Department of Professional and Occupational

Regulations , 293 So. 2d 95 (Fla. 1st DCA 1974).

18. Here, as observed in the Findings of Fact, the

Department has demonstrated that the misleading, deceptive and

untrue representations contained in Respondent's application were

made willfully (intentionally). See Ellis v. State , 425 So. 2d

201 (Fla. 5th DCA 1983), approved, 442 So. 2d 213 (Fla. 1983)

(Circumstantial evidence is sufficient to prove intent).

Consequently, it has been shown, as alleged in the Administrative

Complaint, that Respondent violated the provisions of Section

471.033(1)(b), Florida Statutes.

19. Having reached the foregoing conclusion, it remains to

resolve the appropriate penalty that should be imposed.

Pertinent to this issue, Rule 61G15-19.004, Florida

Administrative Code, provides the guidelines for the disposition

of disciplinary cases, as well as aggravating and mitigating

circumstances to consider. Where, as here, a license has been

procured through fraudulent representations, the recommended

penalty is revocation and a $1,000 fine. Such penalty is

appropriate under the facts of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered which finds

Respondent guilty of violating Section 471.033(1)(b), Florida

Statutes, as alleged in the Administrative Complaint.

It is further RECOMMENDED that for such violation, the final

order revoke Respondent's certificate of authorization and impose

a $1,000 fine.

DONE AND ENTERED this 17th day of September, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of September, 1998.

ENDNOTES

1/ Objections were sustained to Petitioner's Exhibits 10, 13, 14,

and 15. No document was marked as Petitioner's Exhibit 12.

2/ At hearing, the parties agreed that official recognition be

taken of Petitioner's Request for Admissions and Respondent's

response. The parties' request was granted, and those matters

have been marked Joint Exhibit 1 and received into evidence.

3/ PAB Consultants, Inc. (PAB), is a family owned corporation

engaged in highway (roadway) related work, principally through

contracts with the Florida Department of Transportation. Paul

Barcia, Sr., and his wife, Ann Barcia, are the principal owners of

the corporation, although their son, Paul Barcia, Jr., apparently

holds some interest. Mrs. Barcia is the president and secretary

of PAB, Mr. Barcia its treasurer, and Paul, Jr., its senior vice-

president.

PAB was founded in 1991 when Paul Barcia, Sr., retired following

31 years of employment with the Florida Department of

Transportation (FDOT). Mr. Barcia's duties with FDOT, although

vaguely expressed, were related to transportation and highway

maintenance. (Petitioner's Exhibit 2, pages 9 and 10).

Mr. Barcia does not, however, appear to have ever been a licensed

engineer. Mrs. Barcia, a high school graduate without the benefit

of further formal training, is likewise not a licensed engineer.

According to the proof, although associated with PAB from its

inception, Mrs. Barcia was employed full time by the Department of

Veteran's Affairs (VA), West Palm Beach, Florida, until her

retirement in 1994. Mrs. Barcia's actual duties with the VA are

not clearly expressed of record; however, it appears "[s]he worked

for the engineering department, procurement, contracting."

(Petitioner's Exhibit 2, page 10).

4/ That the various applications falsely named Irwin Schram as a

professional engineer employed by PAB is not the subject of

dispute. Moreover, given the proof, it should not be subject to

serious debate that the inclusion of Mr. Schram's name as an

employee on the various applications was an intentional act.

The conclusion that naming Mr. Schram as an employee of PAB was an

intentional act, as opposed to mistake or neglect, is based in no

small part on the observations which follow. First, it defies

logic and common experience that a professional engineer would

inadvertently be listed as an employee of PAB. Indeed, PAB is

such a small company that it is inherently improbable that those

in authority would not know the professional engineers employed by

the company, or stated otherwise, that they would name a stranger

as a professional employee by mistake.

Moreover, pointing with unwavering certainty toward the conclusion

that PAB's act in naming Mr. Schram as an employee was

intentional, as opposed to inadvertent, is evidence of similar

unauthorized use of Mr. Schram's name and licensure status to

advance PAB's applications with the Florida Department of

Transportation (FDOT) for pre-qualification to work (bid) on

certain discrete categories of transportation/highway projects.

Such intention is evident from the magnitude of PAB's duplicity

following the brief contact it had with Mr. Schram, as hereinafter

discussed.

Mr. Schram retired to South Florida in 1991, following a 25-year

career with Lockwood Greene Engineers, Inc., in New York State.

During that period, Mr. Schram served as a structural engineer

(11 years) and as a project manager (14 years), with

responsibility for the design and construction of commercial and

industrial buildings, schools, recreational, and research centers

(vertical construction). Mr. Schram had no experience, and has

never claimed to have any experience in transportation/traffic

engineering, highway design or construction, bridge design or

construction, or other matters related to transportation.

Following retirement, Mr. Schram elected to work part-time as a

consultant, and in January 1993, observed an advertisement in the

Sun Sentinel, a local newspaper, for a part-time professional

engineer, with vertical construction experience. Mr. Schram

responded to the telephone number listed, and reached the offices

of PAB. As a consequence, Paul Barcia, Sr., made an appointment

to meet with Mr. Schram in his (Mr. Schram's) home. In the

interim, Mr. Schram forwarded to Mr. Barcia a copy of his resume.

Mr. Barcia met with Mr. Schram on January 15, 1993. During the

course of that meeting, Mr. Barcia suggested to Mr. Schram that he

could make $55,000 a year, sitting at home, by signing and sealing

drawings. In response, Mr. Schram expressed interest, provided he

could inspect the work prior to approving the drawings, as well as

after the work was completed, to assure it complied with code and

professional standards; however, Mr. Barcia was reluctant to allow

Mr. Schram to inspect the projects.

About one week later, Mr. Barcia returned and asked Mr. Schram to

review some specifications, which he did; however, because of

Mr. Barcia's refusal to let him inspect the properties, Mr. Schram

refused to do business with him. That was the last Mr. Schram

heard or saw of Mr. Barcia (or PAB) until on or about July 22,

1997, when he received a letter from the Department regarding an

audit of the records of PAB. That letter stated:

Our current records show that you are

listed as one of the professional engineers

for PAB Consultants, Inc. Please let me know

if this is still your current status.

Mr. Schram responded that he was not, and never had been,

associated with PAB. Thereafter, Mr. Schram also learned that PAB

had (starting as early as February 17, 1993, and extending at

least until April 28, 1995) listed him (without his knowledge or

consent) as a professional engineer employed by the company when

it had applied for pre-qualification with FDOT. PAB had also, in

conjunction with those applications, submitted resumes bearing the

PAB logo that purported to detail Mr. Schram's career and

experience; however, PAB falsified his experience to include

highway design and construction, bridge design and construction,

and other transportation/traffic engineering experience which

Mr. Schram did not possess. PAB even advised FDOT, in a letter

dated April 27, 1995 and signed by Mrs. Barcia (Petitioner's

Exhibit 20), that Irwin Schram was one of the company's design

project managers with "extensive experience in major and complex

highway design," and the resume it enclosed for Mr. Schram,

bearing the PAB logo, stated he possessed the following "Relevant

Experience":

Lockwood Greene Engineers, Inc. New York,

NY 1965-1990 - Irwin is a diversified

professional engineer with over twenty-five

years experience with Lockwood Green

Engineers. During his tenure he served as a

Design Engineer, Design Program Manager,

Structural Engineer and Transportation

Manager .

Design Engineer/Design Program Manager -

Responsible for all phases of the original

design of the Homestead extension of

Florida's Turnpike. The subject design

encompassed forty-six (46) miles of limited

access facility with ten (10) interchanges,

located in Dade and Broward counties .

Structural Engineer (11 years) -

Responsibilities include design of new bridge

structures and rehabilitation design of

existing structures . Additional structural

design projects include design of commercial

and industrial buildings, recreational and

research centers.

Transportation/Traffic Engineering -

Responsible for supervision of Traffic

Engineering Studies. Data gathered from

local streets and intersecting highways

generated the components needed to permit

proposed commercial projects. In addition to

the above, he provided Traffic/Transportation

Design Services in signing, pavement markings

and channelization plans . (Emphasis added.)

Those matters emphasized in the resume were false, as Mr. Schram

had no such experience.

In reaching the conclusion that the use of Mr. Schram's name and

registration on the various applications filed with the Department

was willful (intentional), the exculpatory testimony offered by

Mr. and Mrs. Barcia (that they were unaware that Mr. Schram's name

and registration were used to advance PAB's applications with the

Department or FDOT, or that fraudulent resumes had been submitted

to advance PAB's interests with FDOT) has not been overlooked.

However, such testimony has been rejected as unworthy of belief.

5/ At the time, Dana Smith was also not employed by PAB.

6/ Again, Dana Smith was no longer employed by PAB.

COPIES FURNISHED:

Harold M. Knowles, Esquire

John R. Marks, III, Esquire

Knowles, Marks & Randolph, P.A.

215 South Monroe Street, Suite 130

Tallahassee, Florida 32301

Brant Hargrove, Esquire

1026 East Park Avenue

Tallahassee, Florida 32301

Dennis Barton, Executive Director

Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.