The Issue Whether Petitioner, Dr. Herbert R. Slavin, is entitled to an award of attorney's fees and costs in an amount not exceeding $50,000 pursuant to section 57.111, Florida Statutes (2011).
Findings Of Fact Dr. Slavin, a licensed physician who specializes in internal medicine, has practiced in the state of Florida since 1981. In or around 2008, Dr. Slavin formed, and is the sole shareholder of, "Ageless Medicine Associates," a subchapter S corporation1/ under which he practices medicine. On October 31, 2011, the Department filed an Administrative Complaint that charged Dr. Slavin with two statutory violations, both of which were ultimately dismissed by the Board of Medicine. In connection with that proceeding, Dr. Slavin now seeks an award of attorney's fees and costs pursuant to section 57.111. As explained later in this Final Order, a party seeking fees and costs pursuant to section 57.111 must demonstrate that he or she was a "small business party" at the time the underlying action was initiated by the state——in this instance, October 31, 2011. Section 57.111(3)(d) contemplates that a small business party can take four alternative forms, only two of which require discussion here: a partnership or corporation, including a professional practice, that, during the relevant timeframe, had 25 or fewer full-time employees or a net worth of not more than $2,000,000 (section 57.111(3)(d)1.b.); or an individual whose net worth did not exceed $2,000,000 during the relevant period (section 57.111(3)(d)1.c.). The evidence establishes that, as of October 2011, Ageless Medicine Associates had fewer than 25 employees and a net worth that did not exceed $2,000,000. The problem, though, and as discussed elsewhere in this Order, is that section 57.111(3)(d)1.b. has no application where, as in this case, the underlying complaint was filed against a licensee individually, rather than the partnership or corporation under which the licensee conducts business. As for Dr. Slavin's personal finances, his 2011 tax return reflects income of $171,810, virtually all of which comprises wages and business income derived from Ageless Medicine Associates, and an adjusted gross income of $161,400. The remainder of Dr. Slavin's financial picture (including, for example, any assets on hand that did not generate taxable income) during October 2011 is nebulous, however, for nearly all of his testimony focused incorrectly on his finances at the time of the final hearing: Q. Are you, doctor, currently worth $2,000,000? A. No. * * * Q. Dr. Slavin, do you own a home? A. Yes. Q. How much, if you know, is that home worth? A. Probably around $300,000 to $350,000. Q. And do you have a mortgage on that home? A. Yes. Q. How much is the mortgage; do you know? A. $145,000. Q. And do you have any cash in the bank? A. Yes. Q. How much? A. Around $10,000 . . . . * * * Q. Do you own any boats? A. No. Q. Do you own any vacation homes? A. No. Q. Do you own any interest in any other businesses? A. No. Q. Do you have a lot of stock accounts? A. No. * * * Q. Okay. Is there any other asset that you have that has not been mentioned; your home, your business? Do you own your vehicles? A. No, they're leased. Q. Do you own any other stocks or bonds that provide you with an income or that are worth money, that you know of? A. No. * * * Q. Dr. Slavin, you testified that -- You were asked by counsel whether or not you had a lot of stocks or bonds as assets and you stated no. Do you -- what does a lot mean? A. Well, I have -- I don't have any direct ownership of stocks or bonds. There are some annuities I have that have, I guess, investments and mutual funds or something. You know, I'm not -– * * * Q. Dr. Slavin, have you presented any information or any documentation as to what items are within your home? A. Not that I'm aware of. I have a television, -- Q. Do you have -- A. -- a refrigerator and -- Q. Do you have furniture in your home? A. Yeah. I have furniture, a refrigerator, stove, microwave. I have -- Q. Do you have computer equipment in your home? A. I have laptop computers in the home. Q. Do you have any personal items; jewelry, watches in your home? A. I have -– Yes, I have watches. Final Hearing Transcript, pp. 23; 25-28; 30-31 (emphasis added). Even assuming, arguendo, that Dr. Slavin's testimony had been properly oriented to the relevant time period (which it was not, in nearly all instances), his overall evidentiary presentation was simply too fragmentary to permit the undersigned to independently determine the value of his net worth——a figure derived2/ by subtracting total liabilities from total assets. For example, Dr. Slavin provided: no information concerning his annuities and mutual funds, the value of which could be non- trivial due to the remunerative nature his profession and his length of time in practice; no details regarding the value of his household assets; and no credible evidence regarding the value of his home.3/ In light of these gaping holes in the evidence, which preclude anything more than rank speculation concerning the value of Dr. Slavin's personal net worth, it is determined that status as a small business party has not been proven.4/ Because Dr. Slavin's failure to establish his status as a small business party is fatal to his application for attorney's fees, it is unnecessary to determine whether the underlying proceeding was substantially justified.
Findings Of Fact Bernard M. Tully, M.D. served by mail his Motion to Tax Attorney's Fees and Costs pursuant to Chapter 57, Florida Statutes, on May 19, 1987; same was filed with the Division of Administrative Hearings on May 21, 1987 and was assigned DOAH Case No. 87-2265F. This instant cause is a fee and costs case pursuant to Chapter 57, Florida Statutes, arising out of Department of Professional Regulation, Board of Medical Examiners v. Bernard M. Tully, M.D.; DOAH Case No. 85-3175. The Department of Professional Regulation has moved to dismiss Tully's Motion to Tax Attorney's and Costs, (hereafter, "Fees and Costs Petition") upon allegations that the claim was not filed in a timely manner pursuant to Section 57.111(4)(b)2, Florida Statutes, and upon allegations that the Fees and Costs Petition did not comply with the requirements of Section 57.111(4)(b), Florida Statutes, in that the claimant had not submitted an itemized affidavit of the nature and extent of the services rendered as well as the costs incurred. A Voluntary Dismissal was served by mail by Petitioner Department of Professional Regulation in DOAH Case No. 85-3175 on March 6, 1987, and filed with the Division of Administrative Hearings on March 10, 1987. The Order closing the Division file in that case was entered March 18, 1987, but is largely superfluous since a Voluntary Dismissal by the party bearing the burden of proof dismisses a cause by operation of law as of the date of filing of the Voluntary Dismissal. Tully's Fees and Costs Petition was served (May 19, 1987) and filed (May 21, 1987) well beyond the 60 day timeframe (May 11, 1987) provided in Section 57.111(4)(b)2, Florida Statutes, for the filing of such claims. Tully's Fees and Costs Petition attached schedules itemizing costs incurred and pleadings filed in DOAH Case No. 85-3175. The Petition was not verified and no affidavits are attached. In these respects, the Fees and Costs Petition failed to comply with Section 57.111(4)(b)1, Florida Statutes, and Rule 22I-6.35, Florida Administrative Code. Neither does the Fees and Costs Petition or any accompanying affidavit allege whether or not Tully requests an evidentiary hearing; that he is a small business party; where his domicile and principal office are located; how many employees he has; whether or not he is a sole proprietor of an unincorporated business, and, if so, whether or not his net worth exceeds $2,000,000; whether or not he operates as a partnership or corporation i.e. professional practice, and, if so, whether or not the net worth exceeds $2,000,000; whether the agency's actions were substantially unjustified; and whether or not circumstances exist that would make the award unjust; or whether or not the agency was a nominal party only. There were also no documents upon which the claim was predicated attached to the Fees and Costs Petition. in these respects, the Petition failed to comply with virtually all of Section 57.111(4)(b), Florida Statutes, and Rule 22I-6.035(1)(2), and (3), Florida Administrative Code. Tully timely filed a Response to Order to Show Cause wherein he acknowledged as true and accurate the dates as found in Finding of Fact 4, supra. Moreover, his Response concedes that pursuant to Section 57.111(4)(b)2, Florida Statutes, the application for an award of attorney's fees must be made within 60 days after the date that a small business party becomes a prevailing small business party, but his Response asserts that nothing in the applicable statute provides that an application for costs must be made within 60 days, and therefore at least his application for costs must be deemed timely. The Response further sets out an itemization of costs incurred and is sworn to by Tully's attorney of record. No leave to amend the Petition was granted by the Order to Show Cause.
Findings Of Fact Based upon the testimony of the witnesses, the documentary evidence received at the hearing, and the record in DOAH case no. 88-6257, the following findings of fact are made: On October 24, 1988, the Department notified Sophie DeRuiter and Ann & Jan Retirement Villa that the license to operate an adult congregate living facility expired on October 23, 1988, and that the application for renewal was denied. The specific reasons listed as the grounds for such denial were a determination of confirmed medical neglect of residents and the inappropriate retention of residents. Thereafter, Petitioner timely sought an administrative review of the denial by filing a petition for administrative hearing with the Department which was subsequently forwarded to the Division of Administrative Hearings for formal proceedings on December 16, 1988. That matter was assigned DOAH case no. 88- 6257. Hearing of case no. 88-6257 was originally scheduled for March 17, 1989, by notice of hearing dated January 18, 1989. Thereafter, Petitioner scheduled a number of depositions and requested a continuance in the case to accommodate Sophie DeRuiter. That motion was unopposed by the Department and was granted by order entered February 27, 1989. That order also rescheduled the hearing for April 14, 1989, and required the parties to file a prehearing statement no later than March 24, 1989. Neither party timely filed a prehearing statement. In fact, the parties were unable to agree on a statement due to their disagreement as to the issues of the case. The unilateral statements filed by the parties established that Petitioner sought review of all grounds for the denial of the license renewal. On the other hand, the Department took the position that since Sophie DeRuiter was listed on the Florida Abuse Registry for confirmed medical neglect of residents, that such listing precluded renewal of the license. The Department alleged that Petitioner had not timely challenged the abuse report, and that such record could not be challenged in the instant case. The Department's letter denying amendment or expungement of the medical neglect had been issued December 7, 1988. Given the confusion of the parties and their failure to file prehearing statements as required, the hearing scheduled for April 14, 1989, was cancelled. Subsequently, the Department moved to limit the issue to whether there was a confirmed record of an abuse report (and thereby presume the underlying report correct). Such motion was denied on June 1, 1989. On June 9, 1989, the hearing of this matter was convened. At that time, the Department moved to continue the case due to illness of counsel and her inability to review an amended witness list filed by Petitioner. The motion was granted after it was apparent counsel for the Department was unprepared to go forward on all issues of the case (she represented she had just received the order requiring her to go forward on all issues on June 8, 1989). The case was rescheduled for August 10, 1989. Subsequently, the matter was continued again at Petitioner's request. The case was finally scheduled for hearing for September 8, 1989. The Petitioner filed a motion for summary judgment on August 14, 1989. On September 7, 1989, the Department filed a notice of dismissal which was construed as an assent, in whole or in part, to the relief requested by the Petitioner. Consequently, the hearing was cancelled and jurisdiction was relinquished to the Department for such further action as would be appropriate. It was presumed that the abuse record would be expunged which would result in the reinstatement of the license. The Petitioner in the instant case has not, however, established the final resolution of DOAH case no. 88-6257. Petitioner did not comply with Rule 22I-6.035, Florida Administrative Code by attaching the documents on which the claim that the small business party prevailed was predicated nor was proof of such document offered at the hearing of this matter. Sophie DeRuiter is the administrator and owner of Ann & Jan Retirement Villa which is located at 3486 Rostan Lane, Lake Worth, Florida. According to the style of the initial pleading filed by Petitioner in the instant case, Ann & Jan Retirement Villa has been incorporated. The proof offered at hearing suggested that Sophie DeRuiter is the sole proprietor of a business known as "Ann & Jan Retirement Villa." In August, 1988, Ms. DeRuiter employed approximately four full-time employees. In the three years she has owned and operated the facility, Ms. DeRuiter has never employed more than twenty-five full-time employees. The net worth of Ann & Jan Retirement Villa is less than two million dollars. Ms. DeRuiter's personal net worth is less than two million dollars. The combined worth of Ann & Jan Retirement Villa and Ms. DeRuiter is less than two million dollars. Ms. DeRuiter employed the law firm of Weissman and Chernay, P.A. to represent her in connection with the allegations in DOAH case no. 88-6257. In connection with that case, Ms. DeRuiter incurred legal fees in the amount of $8587.50 together with costs in the amount of $897.59. The reasonableness of those amounts was not disputed.
The Issue The issue for determination in this proceeding is whether Petitioner is entitled to reasonable attorney fees and costs in accordance with Section 57.111, Florida Statutes.
Findings Of Fact Petitioner filed an application for a real estate sales license on January 22, 1991. Respondent denied Petitioner's application on April 25, 1991, thereby initiating agency action. The sole basis for the denial of Petitioner's application was the fact that Petitioner was named as a defendant in multiple civil lawsuits filed in United States District Court. The law suits arose from the failure of Centrust Savings Bank ("Centrust"). Petitioner was President of Centrust from February, 1988, to sometime in July, 1989. He served on the Board of Directors of Centrust from August, 1987, until sometime in July, 1989. Prevailing Party Petitioner was the prevailing party in the underlying proceeding. A Recommended Order was entered on January 23, 1992, recommending that Respondent grant Petitioner's application. Shealy v. Florida Real Estate Commission, DOAH Case No. 91-3147. Respondent entered a Final Order on February 21, 1992, adopting ". . . all Findings of Fact, Conclusions of Law and Recommendation . . ." Respondent granted Petitioner's application for license upon successful completion of the written examination. Petitioner successfully completed the written examination and was licensed as a real estate sales agent on March 27, 1992. Since October 7, 1992, Petitioner has been employed as an independent real estate agent with the firm of Real Estate Transactions, Inc., in Miami, Florida ("RET"). Small Business Party Petitioner became self-employed as a financial consultant in January, 1991. From January 17, 1991, through October 6, 1992, Petitioner conducted his financial consulting business in corporate form through WDS Investment, Inc. ("WDS"). WDS was a small business corporation wholly owned by Petitioner and his wife. 1/ Petitioner intended to utilize his real estate license, and a mortgage broker's license he obtained in the Summer of 1991, as an integral part of the financial consulting business he conducted through WDS. In response to a question asking Petitioner to explain his use of the term "self employed," Petitioner stated: I had started WDS Investments. . . . I was unemployed in the tradition[al] sense having been employed for years more as a professional in the financial services field In essence, I was going to try to build a consulting practice. I wanted to get my real estate license and my mortgage brokers license. Transcript at 20. Petitioner and WDS were one and the same entity. Petitioner was the sole managing shareholder and officer in WDS. Petitioner was the only person active in WDS and had exclusive management control of the corporation. Petitioner regarded WDS as his corporation, regarded himself as self employed, and operated WDS as his corporation. Petitioner is the party claiming fees and costs and the prevailing party in the underlying proceeding. After Respondent initiated agency action on April 25, 1991, Petitioner had other business activities in addition to his financial consulting business. Petitioner obtained his mortgage broker license in the Summer of 1991. From that time through October 6, 1992, Petitioner worked as an independent mortgage broker and loan consultant with Financial Monitors, Inc. ("Monitors"). Petitioner was an independent contractor and not an employee of Monitors. Petitioner had no ownership interest in Monitors. Petitioner was employed by Securnet Financial Corporation ("Securnet") from August 1, 1991, to the end of 1991. Petitioner was employed as a manager and had no ownership interest in Securnet. Petitioner's employment with Securnet did not begin until after Respondent initiated agency action on April 25, 1991. His employment with Securnet terminated prior to the commencement of this proceeding on May 26, 1992. Petitioner became employed as an independent sales agent with RET on October 7, 1992. Petitioner's status as an employee with RET began after agency action was initiated on April 25, 1991, and after this proceeding was initiated on May 26, 1992. Petitioner is a small business party within the meaning of Section 57.111(3)(d)1., Florida Statutes. Petitioner is domiciled in Florida and has been so domiciled since before this proceeding began on May 26, 1992. The principal office of WDS has been located in the state since January 17, 1991. Petitioner conducted his financial consulting business in corporate form on April 25, 1991. Since January, 1991, Petitioner has had no more than 25 employees and a net worth of no more than $2 million, including both personal and business investments, either directly or by attribution from his wife, WDS, and his other business activities. Not Substantially Justified Respondent was not substantially justified in denying Petitioner's license application. Respondent had no reasonable basis in law or fact to deny Petitioner's application. Respondent cited no legal authority to support its denial of Petitioner's application solely on the basis of Petitioner's status as a defendant in civil litigation. Respondent presented no evidence that it undertook an independent determination of the truthfulness or credibility of the allegations in the litigation, no independent evidence to support such allegations, and no evidence to support any other factual basis for Respondent's denial of Petitioner's application. Respondent presented no evidence of Petitioner's lack of qualification to be licensed as a real estate sales agent. Petitioner made a full and timely disclosure on his application that he was a defendant in civil litigation. Respondent presented no evidence that the allegations in the civil lawsuits were anything other than allegations against numerous officers and directors of Centrust. Respondent presented no evidence of an adjudication of Petitioner's guilt. Respondent presented no evidence to rebut or refute Petitioner's showing that Petitioner is honest, truthful, trustworthy, of good moral character, and has an impeccable reputation for honesty and fair dealing in the business community. Fees And Costs The attorney fees and costs claimed by Petitioner are reasonable and necessary. Petitioner presented credible and persuasive expert evidence that the attorney fees and costs are reasonable and necessary.
Findings Of Fact The Respondent is and at all times material hereto was a certified general contractor, having been issued license No. CG017743. That license is presently in inactive status. In August, 1980, the Respondent submitted an application to the Palm Beach County Construction Industry Licensing Board in order to take the examination for qualifying as a drywall contractor. A check for the required fee was submitted with the application. While the application was being processed, an official of the Board received a letter stating that the Respondent did not have the necessary experience to take the drywall examination. The Board official, Mr. Edward R. Flynn, contacted the Respondent and asked her to meet with him regarding the application. At the meeting, Respondent was confronted with the information that the experience resume, citizenship, and social security information were not true. Respondent became very tearful and asked to withdraw the application. Other than her statement that she had been a bookkeeper and done some estimating for a contracting firm, Respondent had very little to say in response to Mr. Flynn's questions. She provided no other specific information in the meeting. Mr. Flynn returned her check but did not return the application. The following information in the application was false: Her citizenship was shown on the application as a United States citizen when, in fact, she was a citizen of Canada. The social security number entered on the application was Respondent's Canadian social security number, not a U.S. social security number. The resume attached to the application reflects that Respondent worked from 1971 to 1973 as a laborer for Smith Plastering. This was not true. The resume also states that Respondent was a project supervisor for all phases of drywall, stucco, and insulation for five years. This information was false. Respondent did not work as a "project supervisor" with the listed employer, ALC Interior Systems of Florida, Inc. The application was signed by the Respondent before a notary on July 28, 1980. The Respondent also signed the resume as well as a verification of construction experience from Smith Plastering employment from 1971 to 1973. In May, 1980, Respondent filed her application with the Florida Construction Industry Licensing Board to take the State Certified Contractor's Examination. As a part of that application, the Respondent listed her experience from 1974 to May, 1980, as project supervisor supervising all phases of construction. This information was false. From 1974 to 1980, the Respondent was employed as controller of ALC Interiors. She performed bookkeeping and other financial related functions. She was not a project supervisor and did not supervise construction for ALC. The Respondent also placed her Canadian social security number on the state application. The Respondent signed the state application before a notary public on April 4, 1980. Pursuant to her state application, Respondent passed the State Certification Examination for General Contractors in October, 1980, and in February, 1981, was issued license number CG017743.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license as a certified general contractor be revoked. DONE and ENTERED this 20th day of July, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Mr. James Linnan 2715 East Oakland Park Boulevard Executive Director Suite 101 Construction Industry Ft. Lauderdale, Florida 33306 Licensing Board Post Office Box 2 Herbert P. Benn, Esquire Jacksonville, Florida 32202 Blank & Benn 1016 Clearwater Place West Palm Beach, Florida 33402 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner, Kay McGinn, willfully violated Subsection 106.07(5), Florida Statutes (2001), when she certified the correctness of a campaign treasurer's report that was incorrect, false, or incomplete because it failed to disclose an in-kind contribution by Frank Furman for the use of telephones used by Petitioner and her campaign volunteers in offices that Mr. Furman owned.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the Mayor of Pompano Beach, Florida. She ran unsuccessfully for Pompano Beach City Commission in 1996. Her campaigns for the same office in 1998, 2000, and 2002 were successful. The alleged offense took place during the 2002 election campaign. Petitioner is an intelligent, conscientious public servant. She is familiar with the Florida election law and is sensitive to her obligation to follow the law and diligent in her attempt to do so. During the 2002 campaign, Frank Furman, a long-time Pompano Beach business man who enjoys an excellent reputation, offered the use of his business offices to Petitioner for campaign activities. Petitioner chose to use Furman's office on six to eight occasions to make campaign-related local telephone calls. Typically, Petitioner and five or six volunteers would spend about one hour in the early evening calling Pompano Beach voters encouraging them to vote for Petitioner. Mindful of the election law requiring the reporting of "in-kind" contributions, Petitioner asked Mr. Furman the value of the use of his telephones for reporting purposes. Furman advised Petitioner that the use of his telephones had "no value." In reporting "in-kind" contributions, Petitioner's practice was to ask the contributor to provide an invoice reflecting the "fair market value" of the "in-kind" contribution. Armed with the invoice, she would then report the "in-kind" contribution. "Fair market value" is an economic concept used most frequently in reported Florida cases when referring to the value of real property taken in condemnation actions or in determining restitution in criminal cases. Numerous definitions are found. Typically, the definitions involve "a willing buyer and a willing seller, fully informed as to the value of the object of the transaction, neither being under any compulsion to buy or sell." Respondent's Statement of Findings, which was analyzed by Petitioner's expert witness, offers an amortized cost to Mr. Furman for use by Petitioner and her volunteers of the telephones. This amortized cost is apparently advanced as evidence of "fair market value" or "attributable monetary value." Mr. Furman pays a fixed-rate of slightly less than $1,500.00 per month for the use of 32 to 33 telephone lines. This means that each line costs approximately $46.87 per month. Assuming 30 days per month, the daily cost per line is $1.56. Assuming 24-hour days, the hourly cost per line is $0.065. Further assuming that six volunteers used one telephone for one hour on eight different days, the result is 48 hours of line use. The resulting amortized use cost, given the known use by Petitioner and her campaign volunteers, is $3.12. Amortized use cost is not fair market value. Neither an "attributable monetary value" nor a "fair market value" of Petitioner's use of Mr. Furman's telephones was established. To the contrary, it was established that there was no "market" for access to six to eight telephones for one hour, one night per week. While it is assumed that Petitioner would benefit from telephone calls made by her supporters, whether made from their individual homes or from some group setting, the evidence failed to established that Petitioner's use of Mr. Furman's telephones had any "attributable monetary value" or "fair market value." Given that the use of the telephones by Petitioner was during non-working hours when the telephones would normally be idle, it is not surprising that Mr. Furman advised Petitioner that there was no cost associated with the use of his telephones. His monthly telephone bill would be the same whether Petitioner used his telephones or not. Nor is Petitioner to be faulted for relying on the contributor's assessment of the value of the "in-kind" contribution of the use of the telephones. The real value to Petitioner's campaign was the use of Mr. Furman's office as a meeting place. As a practical matter, each volunteer could have taken a list of the telephone numbers of Pompano Beach voters to their respective homes and made the telephone calls from their homes. This was not a professional "phone bank," sometimes used in political campaigns where trained callers use scripted messages designed to elicit voter preferences and where the candidates receives "feed-back" on salient issues. A "fair market value" can be easily established for such services as they are common in the market place. The evidence suggests that campaign volunteers making telephone calls to registered voters from their homes or from someone's office is a common practice in political campaigns in Florida. It is also suggested that this common practice is not reported as a campaign contribution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Petitioner, Kay McGinn, did not violate Subsection 106.07(5), Florida Statutes, as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 13th day of January, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 January, 2004. COPIES FURNISHED: Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Stuart R. Michelson, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue 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.
Findings Of Fact 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.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby 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 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 18th day of May, 2001. COPIES FURNISHED: Frank V. Burianek Post Office Box 4563 Seminole, Florida 33775 David K. Minacci, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1208 Hays Street Tallahassee, Florida 32301 Doug Sunshine, Vice President for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
