STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF PROFESSIONAL ENGINEERS, )
)
Petitioner, )
)
vs. )
) SIEMENS BUILDING TECHNOLOGIES, )
)
Respondent. )
Case No. 06-0153
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case on April 24, 2006, in Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: Douglas D. Sunshine, Esquire
Florida Engineers Management Corporation 2507 Calloway Road, Suite 200
Tallahassee, Florida 32303-5267
For Respondent: Paul Sexton, Esquire
Williams, Wilson & Sexton, P.A.
215 South Monroe Street, Suite 600 Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what penalty, if any, should be imposed.
PRELIMINARY STATEMENT
On or about June 23, 2004, Petitioner filed an Administrative Complaint charging Respondent with "violating 471.031(1)(a), Florida Statutes, by practicing engineering without a license." On July 15, 2004, pursuant to Respondent's written request, the matter was referred to DOAH for the assignment of an administrative law judge "to conduct a hearing pursuant to Section 120.57(1), Florida Statutes." The case was docketed as DOAH Case No. 04-2458. On August 9, 2004, upon the joint request of the parties, the file in DOAH Case No. 04-2458 was "closed with leave for either party to request [DOAH] to reopen the case, should the parties not reach a settlement."
On January 13, 2006, Petitioner requested that DOAH Case No. 04-2458 be reopened, explaining in its referral letter that the parties had "been unable to negotiate a settlement." By order issued January 17, 2006, the request was granted, and the file in DOAH Case No. 04-2458 was reopened as DOAH Case No. 06- 0153PL.
On January 26, 2006, Petitioner filed a Petition for Leave to File Amended Petition for Formal Administrative Hearing, which was granted, over Petitioner's objection, on February 6, 2006.
On February 24, 2006, Petitioner filed an unopposed Motion for Leave to Amend Administrative Complaint, which was granted
on February 27, 2006. The Amended Administrative Complaint alleged that, in connection with services it had provided to the Broward County School Board, including submission of a "Technical Audit Report about Miramar High School," Respondent had "violated Sections 455.228(1), 471.023(1), and 471.031(1)(a), Florida Statutes, by practicing engineering without a license, to wit: a certificate of authorization issued by the management corporation pursuant to qualification by the board."1
On March 14, 2006, Respondent filed a Second Amended Petition for Formal Administrative Hearing, which was "accepted," over Petitioner's objection, on March 16, 2006.
On April 17, 2006, the parties filed a Joint Pre-Hearing Stipulation, which contained the following "[a]dmitted facts," "[c]ontested issues of fact," and [c]ontested issues of law":
Admitted facts.
That the Respondent is a foreign corporation authorized to do business in Florida.
That the Respondent has a certification of authority to engage in contracting as a general contractor.
That the Respondent does not have, and has never had, a certification to practice engineering in Florida through employees employed by it.
That the Respondent was selected by the School Board of Broward County as a
qualified energy performance contractor pursuant to Request for Proposals, RFP 98- 379V.
That the Respondent entered into a contract with the School Board of Broward on or about July 20, 2001, under which the Respondent was to perform an energy audit and prepare a detailed report regarding Miramar High School to determine the feasibility of entering into an energy performance-based contract.
5. That Article 2 of the Energy Services Agreement with the School Board of Broward County stated in part:
"The Parties intend to negotiate an [Energy Services Agreement] under which the Company would design, install and implement energy conservation measures agreed to by the Parties and provide certain maintenance and monitoring Services. The Company shall be obligated to enter into the Energy Services Agreement on the basis of the Report. "
That the Respondent issued to the School Board of Broward County a Technical Audit Report, dated August 27, 2002, and containing an "Energy Consultant Certification" signed by its employee Lawrence B. Stoff.
That Lawrence B. Stoff is a licensed professional engineer, holding Florida P.E. number 46998.
That Lawrence B. Stoff signed the Technical Audit Report as a professional engineer, using his Florida P.E. number.
That, under Section G., the contract with the School Board of Broward County stated in part:
"In accordance with Florida Statute 235.215, the report shall be signed by a Florida Registered Professional Engineer."
That Petitioner has not issued a notice of noncompliance to the Respondent.
That Petitioner has not issued a citation to the Respondent.
Contested issues of fact.
Whether, in contracting with the Broward County School Board and issuing the technical audit report regarding Miramar High School, [Respondent] practiced or offered to practice engineering.
Whether, in contracting with the Broward County School Board and issuing the technical audit report regarding Miramar High School, [Respondent] was acting as a general contractor, certified or registered pursuant to the provision of chapter 489, negotiating or performing services under a design-build contract, with the engineering services offered or rendered in connection with the contract offered or rendered by an engineer licensed in accordance with Chapter 471, Florida Statutes.
Whether, in contracting with the Broward County School Board and issuing the technical audit report regarding Miramar High School, [Respondent] was acting as an energy performance contractor issuing a report pursuant to an energy performance- based contract with a district school board.
Whether the Amended Administrative Complaint relies on a statement of general applicability that implements, interprets, or prescribes law or policy that has not been adopted as a rule pursuant to Section 120.54, Florida Statutes.
Whether the facts support mitigation of any penalty that may be assessed.
Contested issues of law.
Whether Respondent's actions as alleged in the Amended Administrative Complaint[] constitute the unlicensed practice of engineering.
Whether Respondent's actions as alleged in the Amended Administrative Complaint were exempted by Section 471.003(2)(i), Florida Statutes, from the requirement to obtain a certificate of qualification pursuant to Section 471.023, Florida Statutes.
Whether Respondent's actions as alleged in the Amended Administrative Complaint were exempted by Section 235.215 or 1013.23, Florida Statutes, from the requirement to obtain a certificate of qualification pursuant to Section 471.023, Florida Statutes.
[sic] Whether the Amended Administrative Complaint relies on an unadopted rule and is subject to de novo review under the standards of Section 120.57(1)(e), Florida Statutes.
Whether the Board is required by Section 455.2273(1), Florida Statutes, to adopt by rule disciplinary guidelines for all disciplinary grounds alleged in the Amended Administrative Complaint.
Whether Section 455.2273(1), Florida Statutes, requires FEMC and the Board to abide by Board rules setting forth disciplinary guidelines.
Whether an administrative penalty imposed pursuant to Section 455.228(1), Florida Statutes, is subject to Section 455.2273, Florida Statutes.
Whether [Respondent] was exempted from the licensing requirements of Chapter 471, Florida Statutes, by Section 235.215, Florida Statutes, as an energy performance contractor, as defined by Section 235.215(2)(d), Florida Statutes, that issued a report pursuant to Section 235.215(3)(d), Florida Statutes.
Whether there has been a violation of Section 471.031(1)(a), Florida Statutes.
Whether there has been a violation of 455.228(1), Florida Statutes.
Whether the Board has adopted rule provisions specifying the acts alleged in the Amended [Administrative] Complaint that constitute a violation of Section 471.033(1), Florida Statutes.
12. Whether Rule 61G15-19.004(2)(r) provides that the discipline to be imposed under the facts alleged in the Amended [Administrative] Complaint is a reprimand.
Whether [the] Florida Board of Professional Engineers is required to apply the disciplinary guideline of Rule 61G15- 19.004(2)(r) in this case.
Whether Rule 61G15-19.004 is applicable only to licensed engineers.
15. Whether Rule 61G15-19.0051(1)(c) required Petitioner to issue a notice of noncompliance to the Respondent.
16. Whether Rule 61G15-19.0051(2) required Petitioner to issue a citation to Respondent.
As noted above, the final hearing in this case was held on April 24, 2006.2 One witness, Lawrence Stoff, P.E., testified at the hearing. In addition to Mr. Stoff's testimony, 19 exhibits
(Petitioner's Exhibits 1 through 10, and Respondent's Exhibits 1 through 93) were offered and received into evidence.
Following the close of the evidence, but before the conclusion of the hearing, the undersigned established a deadline (30 days from the date of the filing of the hearing transcript with DOAH) for the filing of proposed recommended orders.
The hearing Transcript (consisting of one volume) was filed with DOAH on May 1, 2006.
Respondent and Petitioner filed their Proposed Recommended Orders on May 30, 2006, and May 31, 2006, respectively.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
Respondent is a foreign corporation authorized to do business in Florida.
Respondent's "core business is building automation systems" that "regulate the . . . energy consuming systems in a building," and it holds itself out as an "energy performance contractor."
Respondent has a certification of authority to engage in contracting in Florida in the categories of electrical contracting, mechanical contracting, and general contracting.
Respondent does not now have, nor has it ever had, a
certification to engage in the practice of engineering in Florida through employees employed by it.
Lawrence B. Stoff is now, and has been for the past nine years, an employee of Respondent's, working as a "project manager in the performance contracting field." His "focus" is "evaluating buildings for energy savings opportunities."
Mr. Stoff is a Florida-licensed professional engineer, holding Florida P.E. number 46998.
Several years ago, Respondent responded to a Request for Proposals (RFP 98-379V) issued by the School Board of Broward County (School Board) seeking proposals for "Energy Management Performance Contracting Services." RFP 98-379V contained the following "introduction" describing the objective of the RFP and the services sought:
OBJECTIVE
The School Board of Broward County, Florida (hereinafter referred to as "SBBC") is requesting proposals from interested and qualified performance contractors to implement Energy Conservation Opportunities (ECOs) in SBBC facilities.
SBBC plans to select the three most qualified contractors to enter into a Guaranteed Energy Savings Contract pursuant to Florida Statutes, Chapter 235.215, Educational Facilities, Energy Efficiency Contracting. The term of the contract shall be a maximum of ten years from date of contract approval by the School Board.
Guaranteed energy savings contract may extend beyond the fiscal year in which it
became effective; however, the term of the contract shall expire at the end of each fiscal year and will be automatically renewed annually up to 10 years subject to SBBC making sufficient annual appropriations based upon continued realized energy savings. The contract shall stipulate that the agreement does not constitute a debt, liability, or obligation of SBBC or a pledge of faith and credit of the District. The successful contractors shall provide a written savings guarantee in accordance with Chapter 489.145, Contracting, Energy Efficiency Contracting. The total program costs, including financed equipment cost, maintenance costs, SBBC project maintenance costs, SBBC Project Management costs, and all other costs, shall be 100 percent (100%) covered by energy savings. SBBC will require the successful proposers to fund a SBBC hired "Project Manager." The successful proposers cannot begin any work including, but not limited to, the pilot project until SBBC receives the funds and hires the "Project Manager." The current annual salary for this position is $66,610 which includes benefits. One third of the annual cost for the "Project Manager" will be provided by each selected contractor.
The written guarantee must state that the energy savings will meet or exceed the costs of the ECO's, including cost of the "Project Manager." (i.e. The total costs must be funded out of savings accrued from energy conservation.) SBBC shall make fixed payments to the performance contractor or its assignee for the term of the guaranteed energy savings contract. Such payments shall not exceed the total savings realized under this program for the term of this Agreement.
The objective of SBBC in issuing this Request for Proposals (RFP) is to enhance the school district's ongoing energy conservation and management program and to upgrade SBBC facilities through performance
contracting. The energy conservation measures may be realized through facility alteration that reduces energy consumption or operating costs including but not limited to all energy conservation measures listed in Chapter 235.215.
SCOPE
The three selected proposers shall provide SBBC with a comprehensive energy services program including but not limited to: (a) complete energy audits and technical engineering analyses, (b) design and installation of the most cost-effective energy efficient equipment and systems, including enhancements to its existing School Board-wide Andover Controls Corp. based energy management system, (c) training staff on installed ECOs, (d) monitoring of energy costs, (e) power quality services,
(f) financing for the project, and (g) a written energy guarantee that total program costs shall be 100 percent (100%) covered by program energy savings. The proposed agreement shall not constitute a debt, liability, or obligation of SBBC, nor is it a pledge of the faith and credit of SBBC.
Respondent was subsequently selected, in accordance with the procedures set forth in RFP 98-379V, as one of the "qualified performance contractors to implement Energy Conservation Opportunities (ECOs) in SBBC facilities."
On or about July 20, 2001, Respondent and the School Board entered into an Energy Audit Agreement, pursuant to which Respondent was to perform an energy audit and prepare a detailed report regarding Miramar High School to determine the
feasibility of entering into an energy performance-based contract.
The Energy Audit Agreement contained the following introductory clauses:
Whereas, SBBC has issued a Request for Proposals, RFP 98-379V (RFP) and issued an Addendum thereto collectively referred to as "RFP" and made a part hereof by reference, to identify qualified energy performance contractors for energy performance-based contracts; and
Whereas, the Company submitted a response to the RFP [which is made a part hereof by reference and is referred to as "Proposal"] and participated in a competitive evaluation procedure designed to identify qualified energy performance contractors; and
Whereas, SBBC has selected the Company as a qualified energy performance contractor; and
Whereas, SBBC is responsible for the operation, management and maintenance of facilities identified in the scope of this project, also listed in Attachment "A"; and
Whereas, a comprehensive Investment Grade Energy Audit (hereafter referred to as the "Energy Audit") and a detailed Engineering and Economic Report (hereafter referred to as "Report") must be performed at the Facilities in order to determine the feasibility of entering into an energy performance-based contract to provide for the installation and implementation of Energy Conservation Measures (hereafter referred to as "ECMs") at the Facilities; and
Whereas, Energy Performance Contracting (hereafter referred to as "EPC") is a
generic term used to refer to an energy performance-based contract; and
Whereas, Energy Services Agreement (hereafter referred to as "ESA") means the contract document governing an energy performance-based contract under Section 235.215, Florida Statutes; and
Whereas, if the ECMs recommended by the Company are determined to be feasible by SBBC, and if the amount of energy savings can be reasonably ascertained and guaranteed in an amount sufficient to cover all costs associated with an energy performance contracting project at the Facilities as further defined in Article 1, Section F, the Parties intend to negotiate an ESA under which the Company would design, procure, install, implement, maintain and monitor such energy conservation measures at the Facilities.
Article 1 of the Energy Audit Agreement described the "Scope of Investment Grade Energy Audit and Report." Its prefatory paragraph read as follows:
For each of the Facilities listed in Attachment A, the Company will perform an Energy Audit and prepare a detailed Report which specifically identifies the improvements in energy consumption recommended for installation or implementation at each Facility. The Report shall contain detailed projections of Energy and Utility Savings to be obtained at the Facilities as a result of the installation of the recommended ECMs. The savings calculations must utilize assumptions, projections and baselines which best represent the true value of future Energy and Utility Savings for the Facilities, i.e.: utilize accurate marginal cost for each unit of savings at the time the audit is performed; documented material and
adjustments to the baseline to reflect current conditions at the Facilities compared to the historic base period resulting from scheduled new construction and remodeling projects to be implemented by SBBC and listed in the Adopted District Facilities Work Program for Fiscal Years 1999-2000 to 2004-2005; calculations which account for the interactive effects of the recommended ECMs. The Report shall describe the Company's plan for installation or implementation of the ECMs in the Facilities, including all anticipated Associated Costs with such installation and implementation. The primary purpose of the Report is to provide engineering and economic basis for negotiating an ESA between SBBC and the Company; however, SBBC shall be under no obligation to negotiate such a contract.
Section G of Article 1 of the Energy Audit Agreement addressed the "Report Content and Acceptance Procedure," and provided, in pertinent part, that, "[i]n accordance with Florida Statute, the report shall be signed by a Florida Registered Professional Engineer."
Article 2 of the Energy Audit Agreement read as follows:
Energy Services Agreement
The Parties intend to negotiate an ESA under which the Company would design, install and implement energy conservation measures agreed to by the Parties and provide certain maintenance and monitoring services. The Company shall be obligated to enter into an ESA on the basis of the Report, provided SBBC proceeds with the development of the ESA in a timeframe which allows the ESA to be finalized within the timeframe specified
in Article 1, Section G(3). However, nothing in this Agreement should be construed as an obligation on the part of the SBBC to execute an ESA. The terms and provisions of such an ESA shall be set forth in a separate agreement.
Pursuant to its normal practice, Respondent contracted with an engineering firm, Engineering Matrix, Inc., to prepare the audit report. The audit report Engineering Matrix prepared "was not accepted favorably by the [School Board, which] requested that it be reworked by [Respondent's] staff with whom [the School Board] was familiar."
Respondent complied with the School Board's request.
It had Mr. Stoff "rework" the report.
Respondent provided the School Board with an audit report, dated August 27, 2002, that incorporated the revisions Mr. Stoff had made (Revised Technical Audit Report).
The Revised Technical Audit Report was essentially "a proposal of energy conservation measures [at Miramar High School] that would result in energy savings if implemented." Its "general scope and content [were] fairly typical" of the "reports that [were] issued by [Respondent] under Section 235.215," Florida Statutes.
The Revised Technical Audit Report contained the following Energy Consultant Certification signed by Mr. Stoff:
As the Energy Consultant and a Florida registered engineer responsible for
preparing this report, I hereby certify that:
This Study and Report has been performed in accordance with the most current accepted energy practices and procedures.
The members of the Audit Team are qualified to perform the analysis, investigations, and duties assigned to them for the purpose of fulfilling the intent of the report.
This Study has thoroughly examined this building for the purpose of identifying the opportunities which exist for reducing energy consumption.
The data, recommendations and analysis contained in this Report have been performed using standard engineering practices and to the best of my knowledge are correct.
Mr. Stoff signed the Revised Technical Audit Report as a professional engineer, using his Florida P.E. number.
The Revised Technical Audit Report served as the basis for negotiations between Respondent and the School Board that ultimately lead to an Energy Services Agreement between them, as contemplated by the Energy Audit Agreement.
Respondent was paid somewhere between $650,000 to
$800,000 in connection with the work it performed at Miramar High School pursuant to its agreement with School Board.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes (2005).
In Florida, the practice of engineering is now, and has been at all material times, regulated by the provisions of Chapters 455 and 471, Florida Statutes.
"Engineering," as that term is used in Chapter 471, Florida Statutes, is now, and has been at all material times, defined in Section 471.005(7), Florida Statutes, as follows:
"Engineering" includes the term "professional engineering" and means any service or creative work, the adequate performance of which 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 consumer 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 other 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 which is recognized as engineering shall be construed to practice or offer to practice engineering within the meaning and intent of this chapter.
It is the responsibility of Petitioner to administer and enforce the provisions of Chapter 471, Florida Statutes. In discharging this responsibility, it is assisted by the Florida Engineers Management Corporation (FEMC), which was "created to provide administrative, investigative, and prosecutorial services to [Petitioner]." § 471.038(3), Fla. Stat. (2005).
In the instant case, Petitioner, through FEMC, has charged Respondent, in its Amended Administrative Complaint, with having "violated Sections 455.228(1), 471.023(1), and 471.031(1)(a), Florida Statutes, by practicing engineering without a license, to wit: a certificate of authorization issued by the management corporation pursuant to qualification by the board," when: "[i]n or around May 11, 2001, Respondent contracted to provide services to the Broward County School Board, including an Engineering and Economic Report, for a Technical Audit Report about Miramar High School"; and "[o]n or about August 27, 2002, Respondent submitted the Technical Audit Report with an 'Energy Consultant Certification,' signed by
Respondent's employee, Lawrence R. Stoff, P.E." (Alleged Violations).
Section 455.228(1), Florida Statutes, provides, as it did at the time of the Alleged Violations, as follows:
When the department has probable cause to believe that any person not licensed by the department, or the appropriate regulatory board within the department, has violated any provision of this chapter or any statute that relates to the practice of a profession regulated by the department, or any rule adopted pursuant thereto, the department may issue and deliver to such person a notice to cease and desist from such violation. In addition, the department may issue and deliver a notice to cease and desist to any person who aids and abets the unlicensed practice of a profession by employing such unlicensed person. The issuance of a notice to cease and desist shall not constitute agency action for which a hearing under ss.
120.569 and 120.57 may be sought. For the purpose of enforcing a cease and desist order, the department may file a proceeding in the name of the state seeking issuance of an injunction or a writ of mandamus against any person who violates any provisions of such order. In addition to the foregoing remedies, the department may impose an administrative penalty not to exceed $5,000 per incident pursuant to the provisions of chapter 120 or may issue a citation pursuant to the provisions of subsection (3). If the department is required to seek enforcement of the order for a penalty pursuant to s. 120.569, it shall be entitled to collect its attorney's fees and costs, together with any cost of collection.
At all material times prior to June 5, 2002, the effective date of Chapter 2002-299, Laws of Florida, Section 471.023(1), Florida Statutes, provided as follows:
The practice of, or the offer to practice, engineering by registrants through a corporation or partnership offering engineering services to the public or by a corporation or partnership offering said services to the public through registrants under this chapter as agents, employees, officers, or partners is permitted only if the firm possesses a certification issued by the management corporation pursuant to qualification by the board, subject to the provisions of this chapter. One or more of the principal officers of the corporation or one or more partners of the partnership and all personnel of the corporation or partnership who act in its behalf as engineers in this state shall be registered as provided by this chapter. All final drawings, specifications, plans, reports, or documents involving practices registered under this chapter which are prepared or approved for the use of the corporation or partnership or for public record within the state shall be dated and shall bear the signature and seal of the registrant who prepared or approved them. Nothing in this section shall be construed to mean that a certificate of registration to practice engineering shall be held by a corporation. Nothing herein prohibits corporations and partnerships from joining together to offer engineering services to the public, provided each corporation or partnership otherwise meets the requirements of this section. No corporation or partnership shall be relieved of responsibility for the conduct or acts of its agents, employees, or officers by reason of its compliance with this section, nor shall any individual practicing engineering be relieved of responsibility for professional services performed by reason of
his or her employment or relationship with a corporation or partnership.
At all material times on and after June 5, 2002, Section 471.023(1), Florida Statutes, provided as follows:
The practice of, or the offer to practice, engineering by licensees through a corporation or partnership offering engineering services to the public or by a corporation or partnership offering said services to the public through licensees under this chapter as agents, employees, officers, or partners is permitted only if the firm possesses a certification issued by the management corporation pursuant to qualification by the board, subject to the provisions of this chapter. One or more of the principal officers of the corporation or one or more partners of the partnership and all personnel of the corporation or partnership who act in its behalf as engineers in this state shall be licensed as provided by this chapter. All final drawings, specifications, plans, reports, or documents involving practices licensed under this chapter which are prepared or approved for the use of the corporation or partnership or for public record within the state shall be dated and shall bear the signature and seal of the licensee who prepared or approved them. Nothing in this section shall be construed to mean that a license to practice engineering shall be held by a corporation. Nothing herein prohibits corporations and partnerships from joining together to offer engineering services to the public, provided each corporation or partnership otherwise meets the requirements of this section. No corporation or partnership shall be relieved of responsibility for the conduct or acts of its agents, employees, or officers by reason of its compliance with this section, nor shall any individual practicing engineering be relieved of responsibility for
professional services performed by reason of his or her employment or relationship with a corporation or partnership.[4]
At all material times prior to June 5, 2002, Section 471.031(1)(a), Florida Statutes, provided as follows:
A person may not knowingly:
Practice engineering unless the person is registered under this chapter
At all material times on and after June 5, 2002, Section 471.031(1)(a), Florida Statutes, provided as follows:
A person may not:
Practice engineering unless the person is licensed under this chapter.[5]
In response to Petitioner's charges that it "violated Sections 455.228(1), 471.023(1), and 471.031(1)(a), Florida Statutes," Respondent has contended that "it did not practice engineering without a license, and that it was otherwise exempted from Section 471.023(1), Florida Statutes, by the terms of Section 471.003(2)(i) and 235.215, Florida Statutes."
At the final hearing held in this case, FEMC (prosecuting on behalf of Petitioner) bore the burden of proving that Respondent did engage in the practice of engineering without having a certificate of authorization to do so, as alleged in the Amended Administrative Complaint. To meet its burden, FEMC had to present proof greater than a mere preponderance of the evidence. Clear and convincing evidence
was required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and
Company, 670 So. 2d 932, 935 (Fla. 1996); Diaz de la Portilla v. Florida Elections Commission, 857 So. 2d 913, 917 (Fla. 3d DCA. 2003); and § 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon a preponderance of the evidence, except in
penal . . . proceedings . . . ."). Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . . 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." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in
conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler
Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
The proof FEMC presented at the final hearing, along with the "admitted facts" set forth in the parties' Joint Pre- Hearing Stipulation, clearly and convincingly establish that Respondent engaged in the activities described in the Amended Administrative Complaint; that these activities constituted the practice of "engineering," as then defined in Section 471.005(7), Florida Statutes; and that Respondent did not have, at the time it engaged in these activities, a certificate of authorization "issued by the management corporation pursuant to qualification by the board."
Accordingly, unless, as Respondent claims, it was "exempted from [the certification requirement of] Section 471.023(1), Florida Statutes, by the terms of Section[] 471.003(2)(i) [or] 235.215, Florida Statutes," a finding that Respondent committed the violations alleged in the Amended Administrative Complaint is warranted.
In determining whether Respondent was "exempted from [the certification requirement of] Section 471.023(1), Florida Statutes," it must be remembered that it "appears to be well settled that he who would shelter himself under an exemption clause must clearly show that he is entitled under the law to
exemption, and the law is to be strictly construed as against the person claiming the exemption and in favor of the public." Harper v. England, 124 Fla. 296, 301-302 (Fla. 1936); see also Samara Development Corp. v. Marlow, 556 So. 2d 1097, 1100 (Fla. 1990)("[I]t is a well-recognized rule of statutory construction that exceptions or provisos should be narrowly and strictly construed."); Heburn v. Department of Children and Families, 772 So. 2d 561, 563 (Fla. 1st DCA 2000)("An exemption from a statute, enacted to protect the public welfare, is strictly construed against the person claiming the exemption, and the Department was not required to grant Heburn any benefits under the exemption."); PPI, Inc. v. Department of Business and Professional Regulation, 698 So. 2d 306, 308 (Fla. 3d DCA 1997)("The penny-ante statute is an exception to long-standing Florida law that prohibits all such forms of gambling; as such, it is to be strictly construed."); Terranova v. State, 474 So.
2d 1206, 1208 (Fla. 2d DCA 1985)(upholding finding of trial court "that the lack of an exemption is not an essential element of the offense of engaging in the business or act of a contractor without being duly registered or certified and that the existence of exemptions, as specified in F.S. § 489.103(1-
14) constitute defenses available to the Defendant and there is no due process problem in requiring the Defendant to plead or prove such defenses"; "since the exemptions are contained in a
separate section of the statute, they are a matter of defense available to a defendant and not an element of the offense which is prohibited in yet another section of the act."); Pal-Mar Water Management District v. Board of County Commissioners, 384 So. 2d 232, 233-234 (Fla. 4th DCA. 1980)("[I]n light of the strict construction against a party claiming a statutory exemption, the instant order declaring Pal-Mar's drainage project not a closed system is affirmed."); and State v. Nourse,
340 So. 2d 966, 969 (Fla. 3d DCA 1976)("Being an exception to a general prohibition, any such statutory provision is normally construed strictly against the one who attempts to take advantage of the exception. And, unless the right to the exception is clearly apparent in the statute, no benefits thereunder will be permitted. Any ambiguity in an exception statute is normally construed in a manner that restricts the use of the exception.")(citations omitted).
At all material times prior to June 5, 2002, Section 471.003(2)(i), Florida Statutes, provided as follows:
The following persons are not required to register under the provisions of this chapter as a registered engineer:
Any general contractor, certified or registered pursuant to the provisions of chapter 489, when negotiating or performing services under a design-build contract as long as the engineering services offered or rendered in connection with the contract are offered and rendered by an engineer licensed
or registered in accordance with this chapter.
At all times since June 5, 2002, Section 471.003(2)(i), Florida Statutes, has provided as follows:
The following persons are not required to be licensed under the provisions of this chapter as a licensed engineer:
Any general contractor, certified or registered pursuant to the provisions of chapter 489, when negotiating or performing services under a design-build contract as long as the engineering services offered or rendered in connection with the contract are offered and rendered by an engineer licensed in accordance with this chapter.
"Person," as used in Florida Statutes, is now, and has been at all material times, defined in Section 1.01(3), Florida Statutes, as follows:
The word "person" includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.
"License," as used in Chapter 471, Florida Statutes, was, at all material times prior to June 5, 2002, defined in Section 471.005(8), Florida Statutes, as follows:
"License" means the registration of engineers or certification of businesses to practice engineering in this state.
"License," as used in Chapter 471, Florida Statutes, has been, since June 5, 2002, defined in Section 471.005(8), Florida Statutes, as follows:
"License" means the licensing of engineers or certification of businesses to practice engineering in this state.
In support of its position that it was "exempted from [the certification requirement of] Section 471.023(1), Florida Statutes, by the terms of Section[] 471.003(2)(i)," Florida Statutes, Respondent argues that, "[g]iven the meaning of the terms 'person' and 'license' used in Section 471.003(2)(i), Florida Statutes, the express terms of that provision encompass certificates of qualification required by Section 471.023(1), Florida Statutes."
FEMC (on behalf of Petitioner) contends that Respondent's reliance on Section 471.003(2)(i), Florida Statutes, is "misplaced" inasmuch as this statutory provision's "exemption from licensure requirements applies only to the issuance of a license, as a licensed engineer, to a natural person and is not applicable to a certificate of authorization of a business organization, including a corporation such as Respondent's."
To this argument, Respondent replies:
[T]he interpretation relied on by the Board has been in place for several years, but is not reflected in any rule. This
interpretation of Section 471.003(2)(i), Florida Statutes, meets the definition of a "rule" within the meaning of Section 120.52(15), Florida Statutes,[6] in that it is a statement of general applicability that interprets law.
Because this interpretation is not reflected in the provisions of any Board Rule, it is an "unadopted rule" within the meaning of Section 120.57(1)(e), Florida Statutes.
That provision states:
"(e)1. Any agency action that determines the substantial interests of a party and that is based on an unadopted rule is subject to de novo review by an administrative law judge.
The agency action shall not be presumed valid or invalid. The agency must demonstrate that the unadopted rule:
Is within the powers, functions, and duties delegated by the Legislature or, if the agency is operating pursuant to authority derived from the State Constitution, is within that authority;
Does not enlarge, modify, or contravene the specific provisions of law implemented;
Is not vague, establishes adequate standards for agency decisions, or does not vest unbridled discretion in the agency;
Is not arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational;
Is not being applied to the substantially affected party without due notice; and
Does not impose excessive regulatory costs on the regulated person, county, or city.
The recommended and final orders in any proceeding shall be governed by the provisions of paragraphs (k) and (l), except that the administrative law judge's determination regarding the unadopted rule shall not be rejected by the agency unless the agency first determines from a review of the complete record, and states with particularity in the order, that such determination is clearly erroneous or does not comply with essential requirements of law. In any proceeding for review under s. 120.68, if the court finds that the agency's rejection of the determination regarding the unadopted rule does not comport with the provisions of this subparagraph, the agency action shall be set aside and the court shall award to the prevailing party the reasonable costs and a reasonable attorney's fee for the initial proceeding and the proceeding for review."
[Respondent's] challenge under Section 120.57(1)(e), Florida Statutes, is not to the allegations of the Amended Administrative Complaint, but to the underlying Board interpretation of Section 471.003(2)(i), Florida Statutes. The burden rests on the Board to demonstrate, among other things, that the unadopted rule does not enlarge, modify, or contravene the specific provisions of law implemented. The Board has not met its burden.
The undersigned disagrees that the position taken by Petitioner, in this prosecution of Respondent, regarding the proper interpretation of Section 471.003(2)(i), Florida Statutes, is subject to challenge by Respondent pursuant to Section 120.57(1)(e), Florida Statutes. Such a challenge is
inappropriate because there has not been an adequate showing that, in interpreting Section 471.003(2)(i), Florida Statutes, in this case, Petitioner has made or relied on any "statement of general applicability" constituting a "rule," as defined in Section 120.52(15), Florida Statutes.7 See Pool People, Inc. v. Board of Professional Engineers, No. 05-1637RU, 2005 Fla. Div.
Adm. Hear. LEXIS 1379 (Fla. DOAH December 1, 2005)(Final Order); and United Wisconsin Life Insurance Company v. Florida Department of Insurance, No. 01-3135RU (Fla. DOAH November 27, 2001)(Final Order), aff'd, 831 So. 2d 239 (Fla. 1st DCA 2002).
In any event, contrary to the assertions made by Respondent, the interpretation of Section 471.003(2)(i), Florida Statutes, advanced by Petitioner in this proceeding, "does not enlarge, modify, or contravene the specific provision[] of law implemented"; nor is it unreasonable or clearly erroneous. Rather, it is consistent with, and gives meaning and effect to, the language used by the Legislature in the statute (as it existed during the time frame relevant to the instant case: May 11, 2001, to August 27, 2002 (Relevant Time Frame)).8
To resolve the parties' dispute concerning the proper interpretation of Section 471.003(2)(i), Florida Statutes, it is necessary to ascertain what the Legislature intended. See
Daniels v. Florida Department of Health, 898 So. 2d 61, 64 (Fla. 2005)("In construing a statute we are to give effect to the
Legislature's intent."); Department of Revenue v. Lockheed Martin Corporation, 905 So. 2d 1017, 1020 (Fla. 1st DCA 2005)("Legislative intent is the polestar that guides a court's statutory construction analysis."); and Health Options, Inc. v. Agency For Health Care Administration, 889 So. 2d 849, 851 (Fla. 1st DCA 2004)("We begin our analysis with adherence to the rule that in construing a statute's terms, the polestar that guides a court's inquiry is the legislative intent.").
"The fundamental rule of construction in determining legislative intent is to first give effect to the plain and ordinary meaning of the language used by the Legislature." State v. Sousa, 903 So. 2d 923, 928 (Fla. 2005).
"If statutory intent is unclear from the plain language of the statute, only then may '[the tribunal] apply rules of statutory construction and explore legislative history to determine legislative intent.'" Crescent Miami Center, LLC v. Florida Department of Revenue, 903 So. 2d 913, 918 (Fla. 2005).
The statute may not be interpreted "to negate the clear language used by the [L]egislature." State v. VanBebber, 848 So. 2d 1046, 1050 (Fla. 2003); see also Florida Real Estate Commission v. McGregor, 268 So. 2d 529, 531 (Fla. 1972)("We accepted jurisdiction because the decision conflicts with cases holding that the plain language of licensing statutes governs,
making improper judicial conclusions that the Legislature did not mean what it said. We conclude that the decision of the District Court in purporting to construe the intent and meaning of the statute ignores the quoted plain language of the regulation and judicially legislates an exception favoring the two employees of Mid-State Homes, Inc. by permitting them to serve in the role of real estate salesmen for their employer without being licensed. Without legislative approval, such an exception not only does violence to the plain language of the statute relating to the regulation and licensing of real estate brokers and salesmen, but has peripheral effects posing threat by way of a judicially sanctioned precedent of unauthorized practice to other licensed professions. . . . Courts are supposed to exercise restraint and not be concerned with the wisdom or policy of statutory regulations -- at least not to the point of rewriting a statute to eliminate language with which the court disagrees. Relief in this case, if advisable, should be a matter of legislative, not judicial concern. The Legislature, rather than the courts, has the constitutional latitude to consider after careful hearings the entire subject and resulting effects involved in amending and making exceptions to regulatory statutes.").
It is evident from an examination of the language used in Section 471.003(2)(i), Florida Statutes, that the
construction advanced by Petitioner is the one the Legislature intended.
By its express terms, Section 471.003(2)(i), Florida Statutes, provided an exemption, to the persons described therein, from the requirement that they be "registered" (the term used prior to June 5, 2002) or "licensed" (the term used starting June 5, 2002) as an "engineer."
The Legislature made abundantly clear, through the language it used in Chapter 471, Florida Statutes, that this registration/licensure requirement applied only to natural persons and was not the same as the certification of authorization requirement of Section 471.023(1), Florida Statutes (which applied to business partnerships and corporations such as Respondent).
For instance, the Legislature established, in Sections
471.013 and 471.015, Florida Statutes, "qualifi[cations] to practice in this state as an engineer," such as being of "good moral character," having certain education credentials and/or work experience, and passing an examination, that could be met only by a natural person. See Potomac Engineers, Inc. v. Walser, 127 F. Supp. 41, 42 (D.D.C. 1954), aff'd, 64, 223 F.2d
356 (D.C. Cir. 1955)("Section 1808 provides that to register as a professional engineer the applicant must be a person of good character and repute, who is a citizen of the United States, at
least 25 years of age, and who speaks and writes the English language. Obviously only a natural person can comply with this requirement. Further, paragraph 3 of subsection (b) provides that the applicant must have had 'four or more years' experience in engineering work of a grade or character satisfactory to the Board,' 'or is a graduate in engineering from an institution having a course in engineering of four or more years, and who, in either event, successfully passes a written, or written and oral, examination prescribed by the Board of engineering subjects.' Obviously a corporation cannot take an examination. It is clear to the Court that the statute must be construed by its very terms as inapplicable to corporations and applicable to natural persons only."); and State v. Pittsburgh Testing Laboratory Corp., 203 La. 147, 151-152 (La. 1943)("The statute exempts chemists and engineers engaged in the practice of their professions from the payment of the tax. Undoubtedly, the law making body had in mind natural persons and not artificial beings. If it had intended to exempt corporations engaged in a business enterprise, which required the employment of chemists and engineers, it would have so stated or used some language indicating such intention. A corporation cannot be a chemist or practice a profession, and the mere fact that it is engaged in an enterprise that requires the services of chemists and engineers would in no sense make the corporation a chemist or an
engineer."). Furthermore, in other provisions of Chapter 471, Florida Statutes, the Legislature used language making it clear that it recognized that there was a distinction between engineers, on the one hand, and businesses engaged in the practice of engineering, on the other. These provisions include Section 471.005(8), Florida Statutes (2001)("'License' means the registration of engineers or certification of businesses to practice engineering in this state."); Section 471.005(8), Florida Statutes (2002)("'License"' means the licensing of engineers or certification of businesses to practice engineering in this state."); Section 471.23(5), Florida Statutes (2001)("Disciplinary action against a corporation or partnership shall be administered in the same manner and on the same grounds as disciplinary action against a registered engineer."); Section 471.23(5), Florida Statutes (2001)("Disciplinary action against a corporation or partnership shall be administered in the same manner and on the same grounds as disciplinary action against a licensed engineer."); and Section 471.033, Florida Statutes (2001 and 2002)("The management corporation shall reissue the license of a disciplined engineer or business upon certification by the board that the disciplined person has complied with all of the terms and conditions set forth in the final order.").
The language in Section 471.003(2)(i), Florida Statutes, used to describe the persons exempted thereunder from
registering/licensing as an "engineer" (to wit: "[a]ny general contractor, certified or registered pursuant to the provisions of chapter 489") further supports the view that the Legislature did not intend the exemption to be available to corporate entities such as Respondent.
A "certified contractor," as used in Chapter 489, Part I, Florida Statutes, is now, and was during the Relevant Time Frame, defined in Section 489.105(8), Florida Statutes, as "any contractor who possesses a certificate of competency issued by the department and who shall be allowed to contract in any jurisdiction in the state without being required to fulfill the competency requirements of that jurisdiction."
A "registered contractor," as used in Chapter 489, Part I, Florida Statutes, is now, and was during the Relevant Time Frame, defined in Section 489.105(10), Florida Statutes, as "any contractor who has registered with the department pursuant to fulfilling the competency requirements in the jurisdiction for which the registration is issued."
As Respondent has pointed out, Section 489.119, Florida Statutes, provides, as it did during the Relevant Time Frame, for the issuance of a certificate of authority to a corporation such as Respondent to engage in contracting as a business organization through a qualifying agent; but this certificate of authority given a corporation is not the
certificate of competency that makes a contractor a "certified contractor" under Chapter 489, Part I, Florida Statutes. The latter certificate is attainable only by a natural person, as is evident from a reading of the provisions of Sections 489.111 and 489.113, Florida Statutes, establishing the prerequisites for the issuance of such a certificate (that have been in effect since the commencement of the Relevant Time Frame). See Potomac Engineers, Inc., 127 F. Supp. at 42.
In view of the foregoing, the undersigned rejects Respondent's argument that it was "exempted from [the certification requirement of] Section 471.023(1), Florida Statutes, by the terms of Section[] 471.003(2)(i)," Florida Statutes.
The undersigned next considers Respondent's alternative argument that it was "exempted from [the certification requirement of] Section 471.023(1), Florida Statutes, by the terms of Section[] . . . 235.213, Florida Statutes."
At all material times, Section 235.213, Florida Statutes, provided as follows:9
LEGISLATIVE INTENT.--The Legislature finds that investment in energy conservation measures in educational facilities can reduce the amount of energy consumed and produce immediate and long-term savings. It is the policy of this state to encourage school districts, state community colleges,
and state universities to invest in energy conservation measures that reduce energy consumption, produce a cost savings, and improve the quality of indoor air in facilities, and, when economically feasible, to build, operate, maintain, or renovate educational facilities in such a manner so as to minimize energy consumption and maximize energy savings. It is further the policy of this state to encourage school districts, state community colleges, and state universities to reinvest any energy savings resulting from energy conservation measures into additional energy conservation efforts.
DEFINITIONS.--For purposes of this section, the term:
"Energy conservation measure" means a training program, facility alteration, or equipment to be used in new construction, including an addition to an existing facility, that reduces energy costs, and includes, but is not limited to:
Insulation of the facility structure and systems within the facility.
Storm windows and doors, caulking or weatherstripping, multiglazed windows and doors, heat-absorbing, or heat-reflective, glazed and coated window and door systems, additional glazing, reductions in glass area, and other window and door system modifications that reduce energy consumption.
Automatic energy control systems.
Heating, ventilating, or air- conditioning system modifications or replacements.
Replacement or modifications of lighting fixtures to increase the energy efficiency of the lighting system which, at
a minimum, shall conform to the applicable state or local building code.
Energy recovery systems.
Cogeneration systems that produce steam or forms of energy such as heat, as well as electricity, for use primarily within a facility or complex of facilities.
Energy conservation measures that provide long-term operating cost reductions and significantly reduce Btu consumed.
Renewable energy systems, such as solar, biomass, and wind.
Devices which reduce water consumption or sewer charges.
"Energy cost savings" means:
A measured reduction in fuel, energy, or operation and maintenance costs created from the implementation of one or more energy conservation measures when compared with an established baseline for previous fuel, energy, or operation and maintenance costs; or
For new construction, a projected reduction in fuel, energy, or operation and maintenance costs created from the implementation of one or more energy conservation measures when compared with the projected fuel, energy, or operation and maintenance costs for equipment if the minimum standards of the State Uniform Building Code for Public Educational Facilities Construction were implemented and signed and sealed by a registered professional engineer.
"Energy performance-based contract" means a contract for the evaluation, recommendation, and implementation of energy
conservation measures which includes, at a minimum:
The design and installation of equipment to implement one or more of such measures, and, if applicable, operation and maintenance of such measures.
The amount of any actual annual savings. This amount must meet or exceed total annual contract payments made by the school, state community college, or state university for such contract.
Financing charges to be incurred by the school, state community college, or state university over the life of the contract.
"Energy performance contractor" means a person or business licensed pursuant to chapter 471, chapter 481, or chapter 489 and experienced in the analysis, design, implementation, and installation of energy conservation measures through the implementation of energy performance-based contracts.
ENERGY PERFORMANCE-BASED CONTRACT PROCEDURES.--
A school district, state community college, or state university may enter into an energy performance-based contract with an energy performance contractor to significantly reduce energy or operating costs of an educational facility through one or more energy conservation measures.
The energy performance contractor shall be selected in compliance with s. 287.055; except that in a case where a school district, state community college, or state university determines that fewer than three firms are qualified to perform the required services, the requirement for agency selection of three firms, as provided in s.
287.055(4)(b), shall not apply and the bid requirements of s. 287.057 shall not apply.
Before entering into a contract pursuant to this section, the district school board, state community college, or state university shall provide published notice of the meeting in which it proposes to award the contract, the names of the parties to the proposed contract, and the contract's purpose.
Prior to the design and installation of the energy conservation measure, the school district, state community college, or state university must obtain from the energy performance contractor a report that discloses all costs associated with the energy conservation measure and provides an estimate of the amount of the energy cost savings. The report must be reviewed by either the Department of Education or the Department of Management Services or signed and sealed by a registered professional engineer.
A school district, state community college, or state university may enter into an energy performance-based contract with an energy performance contractor if, after review of the report required by paragraph (d), it finds that the amount it would spend on the energy conservation measures recommended in the report will not exceed the amount to be saved in energy and operation costs over 20 years from the date of installation, based on life-cycle costing calculations, if the recommendations in the report were followed and if the energy performance contractor provides a written guarantee that the energy or operating cost savings will meet or exceed the costs of the system. The contract may provide for payments over a period of time not to exceed
20 years.
A school district, state community college, or state university may enter into an installment payment contract for the purchase and installation of energy conservation measures. The contract shall provide for payments of not less than one- twentieth of the price to be paid within 2 years from the date of the complete installation and acceptance by the school board, state community college, or state university, and the remaining costs to be paid at least quarterly, not to exceed a 20- year term based on life-cycle costing calculations.
Energy performance-based contracts may extend beyond the fiscal year in which they become effective; however, the term of any contract shall expire at the end of each fiscal year and may be automatically renewed annually up to 20 years, subject to a school board, state community college, or state university making sufficient annual appropriations based upon continued realized energy cost savings. Such contracts shall stipulate that the agreement does not constitute a debt, liability, or obligation of the state or a school board, state community college, or state university, or a pledge of the faith and credit of the state or a school board, state community college, or state university.
CONTRACT PROVISIONS.--
An energy performance-based contract shall include a guarantee by the energy performance contractor that annual energy cost savings will meet or exceed the amortized cost of energy conservation measures.
The contract shall provide that all payments, except obligations on termination of the contract before its expiration, are to be made over time, but not to exceed 20 years from the date of complete installation
and acceptance by the school board, state community college, or state university, and that the annual savings are guaranteed to the extent necessary to make annual payments to satisfy the contract.
The contract must require that the energy performance contractor to whom the contract is awarded provide a 100-percent public construction bond to the school district, state community college, or state university for its faithful performance, as required by s. 255.05.
The contract shall require the energy performance contractor to provide to the school district, state community college, or state university an annual reconciliation of the guaranteed energy cost savings. The energy performance contractor shall be liable for any annual savings shortfall which may occur. In the event that such reconciliation reveals an excess in annual energy cost savings, such excess savings shall not be used to cover potential energy cost savings shortages in subsequent contract years.
Respondent was, at all material times, an "energy performance contractor," as defined in Section 235.213, Florida Statutes, in that it was a "business licensed pursuant to . . . chapter 489 and experienced in the analysis, design, implementation, and installation of energy conservation measures through the implementation of energy performance-based contracts."
Accordingly, notwithstanding that Respondent did not possess a certification of authorization to engage in the practice of engineering, Section 235.215, Florida Statutes,
expressly authorized it to engage in the very activities that Petitioner charges, in the Amended Administrative Complaint, were prohibited, including Respondent's providing the School Board with the Revised Technical Audit Report signed by
Mr. Stoff (which, according to subsection (3)(d) of Section 235.215, Respondent was required to do before performing any "design and installation [work on any] energy conservation measure" for the School Board).
To the extent that the statutory provisions that Petitioner charges Respondent with having violated were in conflict with Section 235.215, Florida Statutes, the conflict must be resolved in favor of Section 235.215, which more specifically addresses the activities at issue in the instant case. See Florida Home Builders Association v. St. Johns
County, 914 So. 2d 1035, 1037 (Fla. 5th DCA 2005)("Because section 489.117(4)(e) follows section 489.113(2) in chapter 93-
154 and is more specific regarding licensing requirements for workers performing specialty contracting services, section 489.117(4)(e) controls."); and B.D.M. Financial Corp. v. Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, 698 So. 2d 1359, 1361-1362 (Fla. 1st DCA 1997)("[W]e agree with B.D.M. that the Division apparently premised its ruling on section 498.051. This was error, because section 498.049(1) more specifically
addresses revocations. The law is clear that when two statutes address the same particular subject, the statute that is more specific controls over the statute that is more general.").
Because Section 235.215, Florida Statutes, made permissible the conduct described in the Amended Administrative Complaint for which Petitioner seeks to punish Respondent, the Amended Administrative Complaint should be dismissed.10
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that Petitioner issue a final order dismissing the Amended Administrative Complaint issued against Respondent in its entirety.
DONE AND ENTERED this 13th day of June, 2006, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
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 June, 2006.
ENDNOTES
1 As the parties have stipulated, Petitioner used neither a notice of noncompliance nor a citation to make its allegations against Respondent.
2 The hearing was originally scheduled to commence on March 30, 2006, but was continued at Respondent's request.
3 Among these exhibits was Respondent's Exhibit 8, the transcript of an April 13, 2006, deposition of Paul Martin, Esquire. Mr. Martin serves as both the chief executive officer of the Florida Engineers Management Corporation and the executive director of the Florida Board of Professional Engineers.
4 The current version of Section 471.023(1), Florida Statutes, reads as follows:
The practice of, or the offer to practice, engineering by licensees or offering engineering services to the public through a business organization, including a partnership, corporation, business trust, or other legal entity or by a business organization, including a corporation, partnership, business trust, or other legal entity offering such services to the public through licensees under this chapter as agents, employees, officers, or partners is permitted only if the business organization possesses a certification issued by the management corporation pursuant to qualification by the board, subject to the provisions of this chapter. One or more of the principal officers of the business organization or one or more partners of the partnership and all personnel of the business organization who act in its behalf as engineers in this state shall be licensed as provided by this chapter. All final drawings, specifications, plans, reports, or documents involving practices licensed under this chapter which are prepared or approved for the use of the business organization or for public record within the state shall be dated and shall bear the signature and seal
of the licensee who prepared or approved them. Nothing in this section shall be construed to mean that a license to practice engineering shall be held by a business organization. Nothing herein prohibits business organizations from joining together to offer engineering services to the public, if each business organization otherwise meets the requirements of this section. No business organization shall be relieved of responsibility for the conduct or acts of its agents, employees, or officers by reason of its compliance with this section, nor shall any individual practicing engineering be relieved of responsibility for professional services performed by reason of his or her employment or relationship with a business organization.
5 The current version of Section 471.031(1)(a), Florida Statutes, reads as follows:
A person may not:
Practice engineering unless the person is licensed or exempt from licensure under this chapter.
6 Section 120.52(15), Florida Statutes, provides that "'[r]ule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule."
7 While Respondent presented evidence that, in previous cases, as in the instant case, Petitioner has taken the position that "the exemption for design-build work under [Section 471.003(2)(i), Florida Statutes] is not applicable to corporations, and it is only applicable to natural persons," there was no persuasive proof submitted that in any of these previous cases Petitioner made any "statements of general applicability" on which Petitioner, in the instant case, has relied or intends to rely.
8 All subsequent references to Section 471.003(2)(i), Florida Statutes, and any other statutory provision will be to the version or versions of the provision in effect during the Relevant Time Frame, unless otherwise noted.
9 Section 235.215, Florida Statutes, was repealed and reenacted in essentially identical terms as Section 1013.23, Florida Statutes, effective January 7, 2003, pursuant to Chapter 2002- 387, Laws of Florida.
10 It is therefore unnecessary to, and the undersigned thus will not, address the remaining "[c]ontested issues of law" identified in the parties' Joint Pre-Hearing Stipulation.
COPIES FURNISHED:
Douglas D. Sunshine, Esquire
Florida Engineers Management Corporation 2507 Calloway Road, Suite 200
Tallahassee, Florida 32303-5267
Paul Sexton, Esquire
Williams, Wilson & Sexton, P.A.
215 South Monroe Street, Suite 600 Tallahassee, Florida 32301
Paul J. Martin, Executive Director Florida Board of Professional Engineers 2507 Calloway Road, Suite 200
Tallahassee, Florida 32303-5267
Josefina Tamayo, General Counsel Department of Business and
Professional Regulation Northwood Centre
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.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 13, 2006 | Agency Final Order | |
| Jun. 13, 2006 | Recommended Order | As an "energy performance contractor," as defined in former Section 235.213, Florida Statutes, Respondent was exempt from the certification requirement of Section 471.023, Florida Statutes. |
