vs.
FRANK V. BURIANEK,
Respondent.
) Case No. 01-0273PL
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Carolyn S. Holifield, conducted a formal hearing in the above- styled case on March 22, 2001, by telephone conference.
For Petitioner: David K. Minacci, Esquire
For Respondent: Frank V. Burianek, pro se
The issues in this case are: (1) whether Respondent used a title that tended to indicate he was an active registered engineer in the State of Florida when he did not hold such
registration; (2) whether Respondent violated an order previously issued by the Department; (3) and, if so, what penalty should be imposed.
On November 30, 2000, Petitioner, the Department of Business and Professional Regulation (Department), filed a
four-count Administrative Complaint against Respondent, Frank V. Burianek. Count One of the Administrative Complaint alleges that Respondent violated Subsection 471.031(1)(b), Florida Statutes, by using a title that tends to indicate that he holds an active registration when he does not hold such registration. Count Two alleges that Respondent violated Subsection 471.033(1)(f), Florida Statutes, by using a misleading title in his advertisement. Counts Three and Four allege that Respondent violated an order previously issued by the Department in violation of Subsections 471.033(1)(k) and 455.227(1)(q), Florida Statutes, respectively, by using the title of civil and structural engineer on his letterhead and business cards without indicating that he does not hold a valid license as a professional engineer. Count Four further alleges that Respondent violated Subsection 455.227(1)(a), Florida Statutes, by making misleading representations in or related to the practice of engineering. Finally, the Department alleges that the charges in Counts One, Two, and Three of the Administrative
Complaint constitute grounds for which it may take disciplinary action against Respondent pursuant to Subsection 471.033(1)(a), Florida Statutes.
Respondent timely filed an Election of Rights form with the Department, disputing the allegations in the Administrative Complaint and requesting a formal administrative hearing. By letter dated January 19, 2001, the Department referred the matter to the Division of Administrative Hearings to conduct the proceeding.
At the formal hearing the Department presented the testimony of one witness, Respondent, Frank V. Burianek. The Department also had twelve exhibits received into evidence.
Respondent testified on his own behalf and had seven exhibits received into evidence.
A Transcript of the proceeding was filed on April 6, 2001. Both parties timely filed Proposed Recommended Orders which have been considered in preparation of this Recommended Order.
Respondent, Frank V. Burianek, earned a Master of Science Degree in Civil and Structural Engineering from the University of Bratislava. In 1967, when Respondent earned this degree, the University of Bratislava was located in Bratislava, Czechoslovakia. However, since that time, the country of Czechoslovakia was dissolved and divided to form two new
countries. The country in which the City of Bratislava is now located is the Slovian Republic.
Respondent has worked in the construction business for about 30 years. During this time, Respondent worked as an engineer in Africa and Europe.
At all times relevant to this proceeding, Respondent resided in Pinellas County, Florida. After moving to the area, Respondent made inquiries concerning how he could become a licensed or registered engineer in the State of Florida. After considering the matter, however, Respondent decided that he would not pursue applying for and obtaining a license to practice engineering in the State of Florida. Instead, Respondent chose to become a home inspector.
In Florida, there is no requirement that individuals who work as home inspectors be licensed. Moreover, neither the home inspection business, nor its employees, are regulated by the State of Florida.
According to a flyer distributed by Respondent, he began conducting home inspections in the Pinellas County area in 1992. The flyer stated in relevant part the following:
Hi, my name is Frank Burianek. I am a Civil and Structural Engineer. I have thirty years experience in the construction industry. I have been successfully completing Home Inspections in this area since 1992. You might have used me before,
seen my marketing, or heard how I saved your colleague's deal.
I want to offer you and your colleagues the best service, but I need your professional opinion . . . your advice. And here is where I need your help. You have obviously used a number of inspectors in the past and you can help me be the best one. Don't worry. I have never killed a deal. On the contrary. As there are few inspectors eagerly killing some deals, I have been called on a number of occasions for Engineer's re-inspection.
On October 27, 1998, a letter of complaint, which included a copy of Respondent's flyer, was filed with the Department. The letter of complaint, which appeared to be from the president of a company located in Spring Hill, Florida, that provided construction inspections consultation, indicated that Respondent did not list his license number on the flyer.
The Department assigned the complaint described in paragraph 6 above as DBPR Case No. 98-21925.
In a letter from the Department, Respondent was advised that a complaint had been filed alleging that Respondent "acted in the capacity of an ENGINEER without being duly licensed, a business that requires licensure in the State of Florida." The letter further stated that "this unlicensed practice is a criminal offense for which [Respondent] may be criminally prosecuted."
The Department's investigation of DBPR Case No. 98-21925 included reviewing Department records and
Respondent's flyer and written response to the Department, interviewing Respondent, and conferring with Department staff.
During the course of the investigation, Respondent's flyer was reviewed by the contract administrator for the engineering board. After the contract administrator completed her review of the flyer, she wrote an e-mail to the Department's investigator regarding recommended changes that could be made to Respondent's flyer to correct the problem raised in the complaint. The e-mail, dated January 8, 1999, stated in part the following:
I've read the flyer. Suggest to
Mr. Burianek that he change the second sentence to the following:
"I hold a Master Degree in Civil & Structural Engineering from University." If it is a foreign university, listing the city, state and or country might be helpful too!
The way it is currently written implies or "tends to indicate" that he holds an active registration as a licensed engineer when he does not.
The e-mail described in paragraph 10 was referred to in the Department's Investigative Report of DBPR Case
No. 98-21925. According to the Investigative Report, the engineering board's contract administrator recommended that
Respondent "change the second sentence on the flyer and add credentials."
During the investigation of DBPR Case No. 98-21925, Respondent indicated that he was a civil and structural engineer because he had a master's degree in that field from the University of Bratislava. Respondent also indicated to the investigator that he was working as a home inspector and never intended that the flyer indicate he was licensed or registered as a professional engineer by the State of Florida.
Based on the custom and practice in Europe, as a result of Respondent's obtaining a graduate degree in civil and structural engineering, his title was engineer.
On January 13, 1999, the Department issued a Notice to Cease and Desist in DBPR Case No. 98-21925. The Notice to Cease and Desist, which ordered Respondent to "Cease and Desist from the unlicensed and illegal practice of Engineering," provided in relevant part the following:
You are hereby notified that the following specifically described conduct constitutes the unlicensed practice of contracting by yourself:
* * *
Advertising in the capacity of an Engineer without being duly licensed. Company advertisement indicates that SUBJECT is holding himself as a Civil and Structural Engineer without being licensed. Subject is in violation of F.S. 471.031(1)(a).
You are hereby advised that under Chapter
471.031 of the Florida Statutes, only persons or firms licensed by the Florida Engineering Board may hold himself or advertise as an Engineer.
* * *
You are hereby ORDERED to immediately CEASE AND DESIST from the unlicensed practice of Engineering in the State of Florida. You are further notified that under Section 455.228, Florida Statutes, a fine of up to
$5000 may be imposed on any person engaging in the unlicensed practice of Engineering.
On or about January 13, 1999, Respondent met with Department staff regarding his flyer. At that meeting, Department staff advised Respondent that although he had a master's degree in civil and structural engineering, because he was not licensed or registered as a professional engineer in the State of Florida, he could not simply refer to himself as an engineer. Rather, he also had to indicate that he had a degree in civil and structural engineering and the name and location of the university where he obtained the degree.
The flyer, which was the basis for the complaint in DBPR Case No. 98-21925, had stated only that Respondent was a civil and structural engineer, but made no mention of his educational credentials. However, based on the information the Department gave to Respondent, he modified his initial flyer to include the fact that he had a master's degree with distinction from the University of Bratislava in Europe. Additionally, in
the modified version of the flyer, Respondent deleted the reference to his being called to conduct an "Engineer's re-inspection." Rather, the revised flyer stated that Respondent had been called on a number of occasions for a "re-inspection."
In the revised flyer, Respondent made the following two changes:
I am a Civil and Structural Engineer (Master's Degree with distinction from University of Bratislava - Europe).
* * *
As there are few inspectors eagerly killing some deals, I have been called on number of occasions for a re-inspection.
On or about January 13, 1999, Respondent provided the Department with an affidavit and a copy of the revised flyer. In the affidavit, Respondent stated that he did not intend to deceive the public and had changed the flyer pursuant to the Department's instructions and recommendations.
The revised flyer was reviewed and approved by the Department.
On January 24, 1999, after the Department reviewed Respondent's affidavit and revised flyer, it issued a Closing Order. The Closing Order found that probable cause existed to believe that Respondent violated Chapter 471, Florida Statutes, and noted that the Department had issued a Notice to Cease and
Desist to him. Finally, the Closing Order stated that because "the unlicensed activity" had ceased, the case would be closed without further prosecution.
On or about June 8, 2000, the Florida Engineers Management Corporation received a complaint against Respondent. Included with the letter of complaint was a letter dated
October 23, 1996, that appeared to be from Respondent to someone for whom he had performed an inspection. This complaint was written on stationery with the letterhead of Advanced Building Inspections, Inc., St. Petersburg, Florida.
The complaint referred to in paragraph 21 stated that the October 23, 1996, letter attached thereto was documentation of a "past structural inspection." The complaint further alleged that Respondent, whose name appeared on the letterhead of the October 23, 1996, letter and who appeared to have signed the letter, was not in the Department's computer. The implication was that Respondent was not a registered or professional engineer in the State of Florida.
The Department took no action against Respondent as a result of the allegations in the June 8, 2000, complaint. However, during the course of the Department's investigation of that complaint, the Department requested that Respondent provide a copy of his current business stationery and business card.
On or about October 25, 2000, Respondent provided to the Department the documents it had requested as a part of its investigation of the June 2000 complaint filed against Respondent. In addition to sending the requested documents to the Department, Respondent also sent a letter which stated that the Department had advised him some time ago to "include the city/place of my university with my qualification." In referring to his letterhead and business card, Respondent wrote, "As you can see, I have complied with this request, whenever, I refer to my engineering degree." Finally, Respondent stated that his business cards were printed about eight years ago and that because he does not use them often, "instead of wasting the old ones and printing new ones," he had added the requested information by hand.
The address, telephone and fax numbers, and e-mail address were inscribed on the letterhead of the stationery provided to the Department by Respondent. Also, inscribed on the letterhead just above this information was the following:
Frank V. Burianek, MSC, MBA
Civil and Structural Engineer (Bratislava)
As requested, Respondent also provided the Department with one of his business cards. In the center of the business card, in all capital letters and in bold print was "HOME
INSPECTION." In the lower left corner of the business card was
the following:
Frank Burianek MSC, MBA Civil and Structural Engineer (Bratislava)
Respondent's name, educational degrees earned, and "Civil and Structural Engineer," were inscribed on Respondent's business card. "(Bratislava)" was hand-written just below the words, "Civil and Structural Engineer." Bratislava is the name of the university where Respondent earned his Master of Science Degree and the name of the city where the university is located. Because the name and location of the university were the same, rather than writing, "Bratislava, Bratislava," Respondent wrote only "Bratislava."
Respondent had seen business cards of other individuals that had only included the name of the university where they had earned their degrees. Based on this and the Department's prior instructions, Respondent believed that the addition of "Bratislava" to his letterhead and business cards was acceptable, particularly in view of the fact that the name of the university and the city where it is located are identical.
In the lower right-hand corner of the business card, Respondent's telephone number, including the area code of "813", was inscribed. On the business card, Respondent had crossed out
the "813" area code and had written above it the new area code of "727."
In the January 13, 1999, meeting with Department staff, Respondent was specifically advised how his flyer should be modified so as to avoid the perception that he was a professional engineer, licensed by the State of Florida. Based on Respondent's understanding of the Department's instructions given at that meeting and its approval of his revised flyer, Respondent reasonably believed that he could use the title, "Civil and Structural Engineer" because he had earned a degree in that area, if he included his educational credentials.
In light of the Department's instructions and recommendations, Respondent revised the flyer. In that revised version, Respondent stated, "I am a Civil and Structural Engineer (Master's Degree with distinction, from University of Bratislava - Europe)." The Department approved this revised version of the flyer.
The instructions and suggestions that the Department staff gave to Respondent in January 1999 specifically addressed the flyer that was the subject of the complaint filed in DBPR Case No. 98-21925. However, Respondent reasonably assumed that the substance of those instructions and/or recommendations should apply to his other business documents and advertisements.
The language on Respondent's letterhead and business card complies with the instructions and recommendations given to him by the Department on or about January 13, 1999, and do not tend to indicate that Respondent is a registered engineer in the State of Florida.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.
The Department of Business and Professional Regulation (Department) is empowered to impose penalties on any person not licensed by the Department or the appropriate regulatory board within the Department, who has violated any provision of Chapter 455, Florida Statutes, or any other statute that relates to the practice of a profession regulated by the Department.
Subsection 455.228(1), Florida Statutes. In accordance with that provision the Department may impose an administrative penalty not to exceed $5,000.00 per incident.
The allegations in this case are that Respondent violated Subsections 455.227(1)(a) and (q), Florida Statutes; Subsection 471.031(1)(b), Florida Statutes; and, Subsections 471.033(1)(a), (f), and (k), Florida Statutes.
Subsection 455.227(1), Florida Statutes, provides in pertinent part the following:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
Making misleading, deceptive, or fraudulent representations in or related to the practice of the licensee's profession.
* * *
(q) Violating any provision of this chapter, the applicable professional practice act, a rule of the department or the board, or a lawful order of the department or the board, or failing to comply with a lawfully issued subpoena of the department.
Subsection 471.031(1)(b), Florida Statutes, provides the following:
A person may not knowingly:
* * *
(b) Use the name or title "registered engineer" or any other title, designation, words, letters, abbreviations, or device tending to indicate that such person holds an active registration as an engineer when the person is not registered under this chapter;. . . .
Subsection 471.033(1), Florida Statutes, provides in pertinent part the following:
The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:
Violating any provision of s. 455.227(1), s. 471.025, or s. 471.031, or any other provision of this chapter or rule of the board or department.
* * *
(f) Advertising goods or services in a manner that is fraudulent, false, deceptive, or misleading in form or content.
* * *
(k) Violating any order of the board or department previously entered in a disciplinary hearing.
The Department is required to prove the allegations in the Administrative Complaint by clear and convincing evidence, in order to impose administrative fines upon Respondent for violating the applicable statutes. Department of Banking and Finance, Division of Securities and Investor Protection v.
Osborne, Stern and Company, 670 So. 2d 932 (Fla. 1996).
In Smith v. Department of Health and Rehabilitative Services, 522 So. 2d 956, 958 (Fla. 1st DCA 1988), the term "clear and convincing evidence" is defined as follows:
"Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases.
* * *
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify
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.
The evidence presented by the Department in this case is insufficient to meet its burden. Other than Respondent, the Department presented no witnesses.
The credible testimony of Respondent, as supported by documentary evidence, established that the language used by Respondent on his business card and on the letterhead of his business stationery complied with the instructions or recommendations set forth by the Department when its staff member met with Respondent on January 13, 1999.
Count One alleges that Respondent used a title designation, words, letters, abbreviations, or device tending to indicate that he held an active registration as an engineer in violation of Subsection 471.031(1)(b), Florida Statutes. Count One further alleges that Respondent violated "[Subsection] 471.033(1)(a), Florida Statutes, through a violation of [Section] 471.031, Florida Statutes, by failing to obtain proper licensure prior to practicing engineering in the State of Florida." With regard to the latter allegation in Count One, the Department presented no evidence that Respondent practiced
engineering in the State of Florida. Therefore, there can be no violation of Subsection 471.031(1)(a), Florida Statutes, for Respondent's failing to obtain proper licensure or registration prior to practicing engineering.
As to the former allegations in Count One, the Department has also failed to meet its burden of proof. The Department appears to object to Respondent's use of the title Civil and Structural Engineer and alleges that the title, designation, words, letters, or abbreviations on Respondent's letterhead and business cards tend to indicate he holds an active registration as an engineer. However, the evidence established that in 1999, the Department approved a revised flyer produced and used by Respondent that specifically stated, "I am a Civil and Structural Engineer," followed parenthetically with Respondent's educational credentials, the name of the university conferring the degree, and the location of that university. The evidence presented at hearing also established that Respondent's letterhead and business cards comported with the Department's verbal instructions and recommendations.
Respondent's testimony was that because the names of the university and the city in which the university was located were both Bratislava, his cards and letterhead showed only "Bratislava," rather than "Bratislava, Bratislava." According to Respondent's testimony, this was consistent with what he has
seen on the business cards of others. Respondent's testimony was credible and was undisputed by the Department.
Count Two alleges that Respondent violated Subsection 471.033(1)(f), Florida Statutes, by using a misleading title in his advertising. Again, for the reasons stated in paragraphs 43 and 45, the Department has failed to meet its burden of proof. The only evidence presented at hearing established that the language used by Respondent was consistent with language previously approved by the Department and commonly used on business cards. The Department presented no evidence to the contrary. Thus, the Department failed to prove the allegations set forth in Count Two of the Administrative Complaint.
Count Three of the Administrative Complaint alleges that Respondent violated Subsection 471.033(1)(k), Florida Statutes, by failing to comply with an order of the Department or board previously entered in a disciplinary proceeding. The Administrative Complaint alleges that Respondent violated Subsection 471.033(1)(a), Florida Statutes, "through a violation of [Subsection] 471.033(1)(k), Florida Statutes, by utilizing the title civil and structural engineer on his letterhead and business cards without indication that he does not hold a valid license as a professional engineer."
As stated in paragraphs 43 and 45, the evidence established that the Department previously approved Respondent's
using the title Civil and Structural Engineer as long as the documents on which that title was used also reflected his educational credentials and the university and location of that university. The evidence established that Respondent's letterhead and business card complied with the directives and recommendations of the Department. No contrary evidence was presented by the Department. Although the Department alleges that Respondent failed to indicate on his letterhead and business cards that he did not hold a valid license as a professional engineer, the Department failed to cite a statute, rule, or Department policy that requires such a disclosure. Nor did the Department provide any evidence that it had, at any time, advised Respondent that such language should be included on his business documents.
Finally, with regard to Count Three, the evidence failed to establish that Respondent violated Subsection 471.033(1)(k), Florida Statutes, by violating "an order of the board or the [D]epartment previously entered in a disciplinary hearing." The Department asserts that the Notice to Cease and Desist constitutes the order that Respondent violated. However, despite this assertion, the evidence failed to establish that the Notice to Cease and Desist is an order of the Department or a board that was entered in a disciplinary hearing, and thus, an order that comes within the parameters of Subsection
471.033(1)(k), Florida Statutes. Moreover, even if it is assumed that the Notice to Cease and Desist is an order that is within the purview of the aforementioned statutory provision, for the reasons stated above, the Department failed to prove that Respondent violated an order of the Department as alleged in Count Three.
Count Four alleges that Respondent violated Subsection 455.227(1)(q), Florida Statutes, by failing to comply with a lawful order of the Department, the Notice to Cease and Desist. According to Count Four of the Administrative Complaint, Respondent violated Subsection 455.227(1)(a), Florida Statutes, "through a violation of [Subsection] 455.227(1)(q), Florida Statutes, by failing to comply with the Notice to Cease and Desist." Again, the Department has failed to meet its burden with regard to the allegations in Count Four of the Administrative Complaint
With regard to Count Four, the Department has failed to meet the threshold requirement to show a violation of Subsection 455.227(1)(a), Florida Statutes. According to that provision, quoted in paragraph 37, disciplinary action may be taken if one makes "misleading, deceptive, or fraudulent representations in or related to the practice of the licensee's profession." Subsection 455.01(5), Florida Statutes, defines licensee as "any person issued a permit, registration,
certificate, or license by the [D]epartment." In this case, it is undisputed that Respondent has never been issued a license by the Department. Therefore, Respondent cannot be properly charged under a provision that clearly applies only to licensees.
For the reasons stated herein, the Department has failed to meet the heavy burden required in this case.
RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, enter a final order that dismisses Counts One, Two, Three, and Four of the Administrative Complaint.
DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001.
Frank V. Burianek Post Office Box 4563
David K. Minacci, Esquire Department of Business and
Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and
Hardy L. Roberts, III, General Counsel Department of Business and
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.
