14-002467 Florida Board Of Professional Engineers vs. Allan Williams, P.E., And Allan Williams, P.E., D/B/A Abw Engineering Status: Closed Recommended Order on Tuesday, September 2, 2014.

Summary: Respondent found in violation of offering engineering services through a fictitious name that did not have a valid Certificate of Authorization; recommended reprimand and imposing fine of $5000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF PROFESSIONAL

ENGINEERS,

Petitioner,

vs. Case No. 14 - 2467

ALLAN WILLIAMS, P.E., AND ALLAN

WILLIAMS, P.E., d/b/a ABW

ENGINEERING,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

before J. D. Parrish, an Administrative Law Judge of the Division

of Administrative Hearings, on August 1, 2014 , by video

teleconference at sites in Tallahassee and Or lando, Florida.

APPEARANCES

For Petitioner: John Jefferson Rimes, III, Esquire

Board of Professional Engineers

Suite B - 112

2639 North Monroe Street

Tallahassee, Florida 32303 - 5268

For Respondent: Allan B. Williams, pro se

ABW Engineering

Suite 713

1000 South Semoran Boulevard

Winter Park, Florida 32792 - 5519

STATEMENT OF THE ISSUE S

Whether the Respondent, Allan Williams, P.E. , and Allan

Williams, P.E. , d/b/a ABW Engineering (Respondent or Williams),

committed the violations alleged in the Administrative Complaint

dated November 15, 2013 , and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

Petitioner, Florida Board of Professional Engineers

(Petitioner or Board), filed an Administrative Complaint against

Respondent that alleged Williams did business through an entity

that was not properly certified and authorized to do business as

required by law. More specifically, Petitioner claimed that for

the period March 2009 to June 2013 , Respondent operated ABW

Engineering while that entity was in a delinquent status and not

authorized to do business. In response to the Administrative

Complaint , Respondent denied the material allegations of fact and

asserted that he does business as Allan Williams, P.E.

The case was referred t o the Division of Administrative

Hearings (DOAH) for formal proceedings on May 22, 2014.

Thereafter , by Notice of Hearing dated June 23, 2014, the case

was scheduled for the hearing to be held on August 1, 2014.

Respondent filed an ex - parte request for a continuance on

July 23, 2014. The request represented that Williams would be

represented by an attorney and needed a continuance. An attorney

did not file a notice of appearance on Respondent ' s behalf.

Petitioner opposed the continuance , and the parti es filed various

email exchanges that demonstrated Respondent previously announced

he would be represented by counsel , but that no attorney had

contacted Petitioner regarding the matter. An Order Denying

Continuance was entered on July 29, 2014, that prov ided, in

pertinent part:

In the event an attorney should file a notice

of appearance for Respondent and comply with

the rules regarding contacting opposing

counsel to seek a continuance, the matter may

be revisited.

At the hearing , Petitioner presented t estimony from Wendy

Anderson. Petitioner ' s Exhibits 1, 2, 4 through 6, and

8 through 12 were admitted into evidence. Respondent testified

in his own behalf and presented Exhibits 1 and 2 , which were

received in evidence. The T ranscript of the proceeding was filed

with DOAH on August 13, 2014. Petitioner timely filed a proposed

recommended order that has been considered in the drafting of

this Recommended O rder.

FINDING S OF FACT

1. Allan B. Williams is a licensed engineer fully

authorized to do busine ss in Florida. Respondent ' s recognized

and legally sufficient name to do business is " Allan B.

Williams, P.E. "

2. On or about August 20, 2002, Respondent filed a

fictitious name application with the Florida Department of State ,

Division of Corporations ( DOS) , that represented Allan B.

Williams sought to do business under the fictitious name " ABW

Engineering. " Subsequently, the fictitious name was renewed on

March 28, 2007 , and was valid through December 31, 2012.

3. On or about May 29, 2013, Responden t again filed the

requisite papers with DOS to establish " ABW Engineering " as a

fictitious name , with an active status expiration date of

December 31, 2018 .

4. It is undisputed that Allan B. Williams, the subject of

this case, is the person who establis hed ABW Engineering with

DOS.

5. In 2007 , Petitioner cited the Respondent with practicing

engineering through a business entity that was not properly

authorized to do business in Florida. In response to that claim ,

Respondent acknowledged that he did b usiness as ABW Engineering

and stated, in part:

I didn ' t know I needed one. In all the years

I practiced in Washington, D.C., Maryland and

Virginia I never needed one. The only time I

can remember this being a requirement, is, if

you are a corporation ho me based outside

these states and jurisdiction and you wish to

do business in these states and jurisdiction,

then you have to pay a " foreign corporation "

tax or fee. It was my impression that

Certificate of Authorization was the same as

a foreign corporat ion fee.

6. In further response to the 2007 dispute , Respondent

filed the appropriate paperwork and paid the required fees to

obtain a Certificate of Authorization for ABW Engineering

( No. 27462) with Allan B. Williams, P.E. , identified as the

registered principal officer for the company. The licensure date

for ABW Engineering was May 3, 2007.

7. The letter announcing the approval of the Certificate of

Authorization for ABW Engineering contained the following

provisions:

Your Certificate of Authorization will expire

February 28, 2009 . A notice of renewal will

be mailed to the address of the business

thirty (30) to forty - five (45) days prior to

the expiration date.

* * *

In accepting this registration, you assume

the responsibility of complying with the

requirements of Chapter 471, Florida Statutes

and Chapter 61G15, Florida Administrative

Code.

8. Allan B. Williams, P.E. , did not timely renew the

Certificate of Authorization for ABW Engineering when it expired

on February 28, 2009.

9. From Ma rch 1, 2009 , through May 8, 2013, Allan B.

Williams, P.E. , did business under the letterhead and logo of

ABW Engineering. Respondent used the letterhead and logo on

billing for engineering services rendered by Allan B.

Williams, P.E.

10. On or about May 8, 2013, Petitioner issued a Notice to

Cease and Desist to ABW Engineering. That notice provided, in

pertinent part:

Our records show that you do not currently

have a certification as required by section

471.023, FS. If the above facts are true,

they est ablish probabl e cause for FBPE to

believe you are violating Florida law by

offering ENGINEERING SERVICES without the

required license or certification.

11. On May 23, 2013, Respondent wrote a letter in response

to the Notice to Cease and Desist that prov ided:

Certificate of Authority has never been

uppermost in my mind. Why? For over thirty

five years I have always received constant

reminders to complete my courses in

continuing education and to renew my PE

license. Not once have I received reminders

a bout renewing my Certificate of Authority.

And so Certificate of Authority becomes

obscure in comparison to the other licensing

requirements. Think about it. For your PE

you have to satisfy educational requirements

at an accredited school of Engineering ; you

have to work for four (4) years doing

progressively challenging engineering work

which prepares you to take the PE exams; you

have to pass the exams and then you get your

PE License. Then every two (2) years you

have to pass continuing education cou rses.

For Certificate of Authority you fill out a

form and you pay $255. I don ' t think any

Engineer would purposely avoid paying a $255

fee and risk losing thousands of dollars in

earnings. It slipp ed my mind Ï I forgot it Ï I

apologies [sic].

12. On Ju ne 10, 2013, Respondent received a Certificate of

Authorization for ABW Engineering.

13. On September 18, 2013, Petitioner notified Respondent

that the Board was issuing a citation based upon the allegations

previously disclosed to Respondent: that ABW Engineering had

offered engineering services during a period of time when it was

not properly certified or authorized to do business.

14. Under the terms of the citation , Respondent was given

the option of paying the penalty calculated pursuant to Florid a

Administrative Code Rule 61G15 - 19.0071 ($5,000.00) or having the

case prosecuted pursuant to s ection 455.225, Florida Statutes

(2013). 1/ Respondent chose the latter.

15. At hearing , Respondent maintained that he did not do

business as ABW Engineering , but as Allan B. Williams, P.E. That

claim was not deemed persuasive in light of the totality of

evidence that established Respondent routinely used the ABW

Engineering letterhead and logo, was listed in the telephone and

other directories as ABW Enginee ring, and billed for engineering

services with the logo and name. Moreover, Respondent admitted

that using " ABW Engineering " was a strategy to secure work.

CONCLUSIONS OF LAW

16. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569 and 120.57, Fla.

Stat.

17. Section 471.023(2), Florida Statutes, provides:

For the purposes of this section, a

certificate of authorization shall be

required for any business organization or

other person practicing under a fictiti ous

name, offering engineering services to the

public. However, when an individual is

practicing engineering in his or her own

given name, he or she shall not be required

to be licensed under this section.

18. Section 471.005 provides, in pertinent par t:

Definitions . -- As used in this chapter, the

term:

(1) " Board " means the Board of Professional

Engineers.

(2) " Board of directors " means the board of

directors of the Florida Engineers Management

Corporation.

(3) " Certificate of authorization " mean s a

license to practice engineering issued by the

management corporation to a corporation or

partnership.

(4) " Department " means the Department of

Business and Professional Regulation.

(5) " Engineer " includes the terms

" professional engineer " and " lice nsed

engineer " and means a person who is licensed

to engage in the practice of engineering

under this chapter.

* * *

(7) " Engineering " includes the term

" professional engineering " and means any

service or creative work, the adequate

performance of w hich requires engineering

education, training, and experience in the

application of special knowledge of the

mathematical, physical, and engineering

sciences to such services or creative work as

consultation, investigation, evaluation,

planning, and design of engineering works and

systems, planning the use of land and water,

teaching of the principles and methods of

engineering design, engineering surveys, and

the inspection of construction for the

purpose of determining in general if the work

is proceeding in compliance with drawings and

specifications, any of which embraces such

services or work, either public or private,

in connection with any utilities, structures,

buildings, machines, equipment, processes,

work systems, projects, and industrial or

consu mer products or equipment of a

mechanical, electrical, hydraulic, pneumatic,

or thermal nature, insofar as they involve

safeguarding life, health, or property; and

includes such other professional services as

may be necessary to the planning, progress,

and completion of any engineering services.

A person who practices any branch of

engineering; who, by verbal claim, sign,

advertisement, letterhead, or card, or in any

other way, represents himself or herself to

be an engineer or, through the use of some

oth er title, implies that he or she is an

engineer or that he or she is licensed under

this chapter; or who holds himself or herself

out as able to perform, or does perform, any

engineering service or work or any other

service designated by the practitioner w hich

is recognized as engineering shall be

construed to practice or offer to practice

engineering within the meaning and intent of

this chapter.

(8) " License " means the licensing of

engineers or certification of businesses to

practice engineering in this state.

19. Rule 61G15 - 19.001 provides, in part:

(1) Pursuant to Section 471.033(2), F.S.,

the Board, to the extent not otherwise set

forth in Florida Statutes, hereby specifies

that the following acts or omissions are

grounds for disciplinary proceedin gs pursuant

to Section 471.033(1), F.S.

* * *

(3) A professional engineer, corporation or

partnership shall not practice engineering

under an assumed, fictitious or corporate

name that is misleading as to the identity,

responsibility or status of th ose practicing

thereunder or is otherwise false, fraudulent,

misleading or deceptive within the meaning of

subsection 61G15 - 19.001(2), F.A.C. When an

individual is practicing engineering as a

sole proprietor under a combination of his

own given name, and terms such as

" engineering, " " and associates " or " and

company, " then said person is practicing

engineering under a fictitious name, and must

obtain a certificate of authorization

pursuant to Section 471.023(2), F.S. The

name of a corporation or partnershi p, if

otherwise authorized, may include the name or

names of one or more deceased or retired

members of the firm, or of a predecessor firm

in a continuing line of succession. An

engineering firm may not offer services to

the public under a firm name which contains

only the name of an individual not licensed

as a professional engineer, registered

architect, land surveyor, landscape

architect, or professional geologist, in any

state.

20. Rule 61G15 - 19.0071 provides:

Citations.

(1) As used in this rule, " citation " means

an instrument which meets the requirements

set forth in Section 455.224, F.S., and

which is served upon a licensee or

certificateholder for the purpose of

assessing a penalty in an amount established

by this rule.

(2) In lieu of the disc iplinary procedures

contained in Section 455.225, F.S., FEMC is

hereby authorized to dispose of any violation

designated herein by issuing a citation to

the subject within six months after the

filing of the complaint that is the basis for

the citation. If a violation for which a

citation may be issued is discovered during

the course of an investigation for an

unrelated violation, the citation must be

issued within 6 months from the discovery of

the violation and filing of the uniform

complaint form by the investigator.

(3) The following violations with

accompanying fines may be disposed of by

citation:

(a) An engineer who has practiced or offered

to practice engineering through a

corporation, partnership, or fictitious name

which has not been duly certi fied. The fine

shall be $100 for each month or fraction

thereof of said activity, up to a maximum of

$5,000. (See Sections 455.227(1)(j),

471.023, and 471.033(1)(a), F.S.)

(b) Practice with an inactive or delinquent

license more than one month or if a Notice of

Noncompliance has previously been issued for

the same offense. The fine shall be $100 for

each month or fraction thereof. (See Section

471.033(1)(i), F.S.)

(c) Firm practicing without a current

certificate of authorization more than one

month or if a Notice of Noncompliance has

previously been issued for the same offense.

The fine shall be $100 for each month or

fraction thereof. (See Section 471.023,

F.S.)

(d) Failure to notify the Board of a change

in the principal officer of the corpora tion

or partner in a partnership who is the

qualifying professional engineer for said

corporation or partnership within one month

of such change. The fine shall be $500.

(See Section 471.023(4), F.S.)

(e) Unlicensed practice of engineering. The

fine s hall be up to $250 for each month

depending on the severity of the infraction

practice, up to a maximum of $5,000.00. (See

Section 455.228(3)(a), F.S.)

(4) If the subject does not dispute the

matter in the citation in writing within 30

days after the ci tation is served by personal

service or within 30 days after receipt by

certified mail, the citation shall become a

final order of the Board of Professional

Engineers. The subject has 30 days from the

date the citation becomes a final order to

pay the fin e and costs. Failure to pay the

fine and costs within the prescribed time

period constitutes a violation of Section

471.033(1)(k), F.S., which will result in

further disciplinary action. All fines and

costs are to be made payable to " Florida

Engineers Ma nagement Corporation -- Citation. "

* * *

(7) Subsequent violation(s) of the same rule

or statute shall require the procedure of

Section 455.225, F.S., to be followed. In

addition, should the offense for which a

citation could be issued occur in conju nction

with violations not described herein, then

the procedures of Section 455.255, F.S.,

shall apply.

21. In this case , Petitioner bears the burden of proof to

establish by clear and convincing evidence that Respondent

committed the acts complained of in the Administrative Complaint.

See Dep ' t of Banking and Fin . , Div . of Sec . and Investor Prot . v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987); and Pou v. Dep ' t of Ins .

and Treasurer , 707 So. 2d 941 (F la. 3d DCA 1998).

22. What constitutes " clear and convincing " evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n.5 (Fla.

1st DCA 1989), as follows:

[C]lear and convincing e vidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the evidence 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 the 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).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re Davey ,

645 So. 2d 398 (Fla. 1994); and Walker v. Fla . Dep ' t of Bus . &

Prof ' l Reg ., 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J.,

dissenting).

23. In this case , Petitioner has met its burden of proof.

Respondent , Allan B. Williams , is a licensed professional

engineer who used an entity bearing a fictitious name to offer

engineering services to the public in Florida. Allan B.

Williams, P.E. , is not entitled to use " ABW Engineering, " the

letterh ead for ABW Engineering, the logo for ABW Engineering, or

any form of ABW Engineering , unless ABW Engineering is first

registered as a fictitious name with DOS and issued a C ertificate

of A uthorization by Petitioner. In this case, Respondent failed

to kee p the C ertification of A uthorization current. Respondent

used the fictitious name inappropriately and unlawfully. After

the incident in 2007 , Respondent knew or should have known of the

legal requirements regarding the use of the fictitious business

name . Respondent ignored his responsibility under the law and

failed to be accountable for his lapse in judgment. Respondent

is not entitled to disregard the requirements of law.

24. In accordance with the penalty guidelines set forth in

r ule 61G15 - 19.004 and the charges alleged in this case,

Respondent is subject to penalties ranging from reprimand, to

suspension, to revocation of license, as well as fines from

$1,000 .00 to $5,000.00 . More specifically, for the violation of

s ection 471.033(1)(i) , practic ing engineering on an inactive or

delinquent license , Respondent's fine m ay be calculated at the

rate of $100 .00 per month , up to $5,000 .00 .

25. Respondent has twice failed to obtain a valid

C ertificate of A uthori zation for the fictitious name under whi ch

he offers engineering services. During the most recent period of

practicing without the C ertificate of A uthorization , Respondent

worked for 52 months using " ABW Engineering. " Respondent ' s

long - term practice of engineering does not excuse his failure t o

comply with the law and regulations of the State of Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Board of Professional

Engineers enter a final order finding Respondent in vio lation of

offering engineering services through a fictitious name that did

not have a valid C ertificate of A uthorization, imposing an

administrative fine in the amount of $5,000.00, awarding the

costs of prosecution against Respondent, and reprimanding

All an B. Williams, P.E. , as the registered general officer of

ABW Engineering.

DONE AND ENTERED this 2nd day of September , 2014 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Admi nistrative 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 2nd day of September , 2014 .

ENDNOTE

1/ All statutory references are to Florida Statutes (20 13 ),

unless otherwise noted.

C OPIES FURNISHED:

Zana Raybon, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

Suite B - 112

2639 North Monroe Street

Tallahassee, Florida 32303 - 5268

(eServed)

Michael Flury, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

J. Layne Smith, General Counsel

Department of Business and

Professiona l Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2201

(eServed)

John Jefferson Rimes, III, Esquire

Board of Professional Engineers

Suite B - 112

2639 North Monroe Street

Tallahassee, Florida 32303 - 5268

(eServed)

Allan B. Williams, P.E.

AB W Engineering

Suite 713

1000 South Semoran Boulevard

Winter Park, Florida 32792 - 5519

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

t o this Recommended Order should be filed with the agency that

will issue the Final Order in this case.