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By: Bill Christopher

The practice of engineering in Florida is regulated pursuant to Chapter 471, Florida Statutes which sets forth the qualifications for the practice of engineering and establishes the Florida Board of Professional Engineers (the “Board”). The Board is given rule-making authority by this statute (see Chapter 61G15, Florida Administrative Code), and is charged with administering examinations to prospective engineers, licensure of engineers, renewal of licenses and certification of business organizations through which engineering services are offered, among other things. The Board also conducts disciplinary proceedings of engineers. To assist the Board in all of its endeavors, the statute creates the Florida Engineers Management Corporation (“FEMC”) which provides administrative, investigative and prosecutorial services to the Board. The FEMC maintains all of the records of the Board. These are public records and are available, except for active investigations. The FEMC operates through a written contract with the Department of Business and Professional Regulation (“DBPR”). See Chapter 455, Fla. Stat.

PROCEDURE FOR COMPLAINT

The usual procedure for filing a Complaint against a licensed engineer or engineering firm is to fill out a “Uniform Compliant Form” which can be found online at www.fbpe.org. The statements on this complaint are subject to the perjury provisions of Section 837.06, Fla. Stat. FEMC assigns each complaint to an investigator. The investigator forwards each complaint to the engineer named in the complaint. See Section 455.225(1), Fla. Stat. The engineer is given the opportunity to respond to the charges.

RESPONDING TO COMPLAINTS

If you, as the engineer against whom the complaint has been filed, receive a letter from an FEMC investigator asking for your response, what should you do? You should immediately consult an attorney experienced in handling these matters. No matter how trivial you deem the complaint to be, you should not handle the response yourself. The Board does not consider these complaints to be trivial, and your license is at stake.

GROUNDS FOR DISCIPLINARY PROCEEDINGS

Your attorney will fully investigate the complaint, talk to other witnesses as necessary, and write a comprehensive response to each charge. The response should be written with the Board’s disciplinary regulations in mind. Chapter 61G15-19, Florida Administrative Code, is entitled Grounds for Disciplinary Proceedings. A full copy of that chapter is attached to this article. Particular attention should be paid to Section 61G15-19.001 which sets forth the specific acts or omissions which the Board believes are grounds for a disciplinary proceeding. Your attorney should write your response with this section in mind. He or she should be able to recognize which charges in the complaint arguably fall under which item in Section 61G15-19.001.

COMPLETE THE INVESTIGATION

When the investigator receives your response, he/she may allow the complainant to comment on your response. The investigator may then decide to refer the file to one of the Board’s outside experts for a written opinion on whether a violation exists or is likely to exist. The investigator writes a summary of the investigation and forwards the file to the FEMC Prosecutor.

SHOW CAUSE PANEL

The Prosecutor decides either to drop the charges or to refer the case to a “Show Cause Panel” consisting of three (3) members of the Board. At the meeting with the Show Cause Panel, only the prosecutor and the investigator are present to respond to the Panel’s questions. The Panel votes whether to prosecute and on how many counts. This is usually pursuant to a recommendation of the Prosecutor. The Panel also informs the Prosecutor of what the Panel believes would be an appropriate settlement, but this recommendation is not necessarily binding on the Prosecutor.

THE COMPLAINT AND OPTIONS GIVEN

The Prosecutor drafts two (2) documents: an Administrative Complaint and a Stipulation and Settlement Agreement. He/She forwards these documents with an “Election of Rights” which gives the engineer three options:
1. Sign and return the Stipulation and Settlement Agreement (by which you agree to certain penalties and fines; which may include suspension of your license for a period of time); or,
2. Admit the facts in the Administrative Complaint but ask for an informal hearing before the Board (to discuss the disciplinary measures to be imposed); or,
3. Dispute the facts in the Administrative Complaint and request a Formal Hearing before an Administrative Law Judge of the Division of Administrative Hearings.

You will need the advice of an experienced attorney to guide you in selecting the appropriation option.

About the Author: Bill Christopher is a Florida lawyer who has practiced before the Florida Board of Professional Engineers for about the last ten (10) years. Bill has been admitted in other States since 1970 and in Florida since 1988. Bill graduated from the U. S. Military Academy and served in the U. S. Army Corps of Engineers for five (5) years before entering law school. Bill specializes in Construction Law and is certified by The Florida Bar in Construction Law. Bill is also certified by The Florida Bar in Business Litigation Law, and by the National Board of Trial Advocacy in Civil Trial Advocacy. Bill is an arbitrator and a mediator with the American Arbitration Association, and is certified by the Florida Supreme Court as a Circuit/Civil Mediator.

CHAPTER 61G15-19 GROUNDS FOR DISCIPLINARY PROCEEDINGS
61G15-19.001 Grounds for Disciplinary Proceedings.
61G15-19.002 Payments of Fine.
61G15-19.003 Purpose.
61G15-19.004 Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances.
61G15-19.0051 Notice of Noncompliance.
61G15-19.006 Mediation.
61G15-19.0071 Citations
61G15-19.008 Confidentiality of Investigations

61G15-19.001 Grounds for Disciplinary Proceedings.
(1) Pursuant to 471.033(2), Florida Statutes, the Board, to the extent not otherwise set forth in Florida Statutes, hereby specifies that the following acts or omissions are grounds for disciplinary proceedings pursuant to 471.033(1)(f), Florida Statutes.
(2) A professional engineer shall not advertise in a false, fraudulent, deceptive or misleading manner. As used in 471.033(1)(f), Florida Statutes, the term "advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content" shall include without limitation a false, fraudulent, misleading, or deceptive statement or claim which:
(a) contains a material misrepresentation of facts;
(b) omits to state any material fact necessary to make the statement in the light of all circumstances not misleading;
(c) is intended or is likely to create an unjustified expectation;
(d) states or implies that an engineer is a certified specialist in any area outside of his field of expertise;
(e) contains a representation or implication that is likely to cause an ordinary prudent person to misunderstand or be deceived or fails to contain reasonable warnings or disclaimers necessary to make a representation or implication not deceptive;
(f) falsifies or misrepresents the extent of his education, training or experience to any person or to the public at large, tending to establish or imply qualification for selection for engineering employment, advancement, or professional engagement. A professional engineer shall not misrepresent or exaggerate his degree of responsibility in or for the subject matter of prior assignments;
(g) in any brochure or other presentation made to any person or to the public at large, incident to the solicitation of an engineering employment, misrepresents pertinent facts concerning a professional engineer's employer, employees, associates, joint ventures, or his or their past accomplishments with the intent and purpose of enhancing his qualifications and his works.
(3) A professional engineer, corporation or partnership shall not practice engineering under an assumed, fictitious or corporate name that is misleading as to the identity, responsibility or status of those practicing thereunder or is otherwise false, fraudulent, misleading or deceptive within the meaning of 61G15-19.001(2). When an individual is practicing engineering as a sole proprietor under a combination of his own given name, and terms such as "engineering," "and associates" or "and company," then said person is practicing engineering under a fictitious name, and must obtain a certificate of authorization pursuant to Section 471.023(2), F.S. The name of a corporation or partnership, if otherwise authorized, may include the name or names of one or more deceased or retired members of the firm, or of a predecessor firm in a continuing line of succession. An engineering firm may not offer services to the public under a firm name which contains only the name of an individual not licensed as a professional engineer, registered architect, land surveyor, landscape architect, or professional geologist, in any state.
(4) A professional engineer shall not be negligent in the practice of engineering. The term negligence set forth in 471.033(1)(g), Florida Statutes, is herein defined as the failure by a professional engineer to utilize due care in performing in an engineering capacity or failing to have due regard for acceptable standards of engineering principles. Professional engineers shall approve and seal only those documents that conform to acceptable engineering standards and safeguard the life, health, property and welfare of the public. Failure to comply with the procedures set forth in the Responsibility Rules as adopted by the Board of Professional Engineers shall be considered as non-compliance with this section unless the deviation or departures therefrom are justified by the specific circumstances of the project in question and the sound professional judgment of the professional engineer.
(5) A professional engineer shall not be incompetent to practice engineering. Incompetence in the practice of engineering as set forth in 471.033(1)(g), Florida Statutes, shall mean the physical or mental incapacity or inability of a professional engineer to perform the duties normally required of the professional engineer.
(6) A professional engineer shall not commit misconduct in the practice of engineering. Misconduct in the practice of engineering as set forth in 471.033(1)(g), Florida Statutes, shall include, but not be limited to:
(a) expressing an opinion publicly on an engineering subject without being informed as to the facts relating thereto and being competent to form a sound opinion thereupon;
(b) being untruthful, deceptive, or misleading in any professional report, statement, or testimony whether or not under oath or omitting relevant and pertinent information from such report, statement or testimony when the result of such omission would or reasonably could lead to a fallacious conclusion on the part of the client, employer or the general public;
(c) performing an engineering assignment when not qualified by training or experience in the practice area involved;
1. All professional engineer asbestos consultants are subject to the provisions of Section 455.301-.309, F.S., Chapter 471, F.S., and Rule 61G15-19, F.A.C., and shall be disciplined as provided therein.
2. The approval of any professional engineer as a "special inspector" under the provisions of Chapter 553, Florida Statutes does not constitute acceptance by the Board that any such professional engineer is in fact qualified by training or experience to perform the duties of a "special inspector" by virtue of training or experience. Any such professional engineer must still be qualified by training or experience to perform such duties and failure to be so qualified could result in discipline under this chapter or Chapter 471;
(d) affixing a signature or seal to any engineering plan or document in a subject matter over which a professional engineer lacks competence because of inadequate training or experience;
(e) offering directly or indirectly any bribe or commission or tendering any gift to obtain selection or preferment for engineering employment with the exception of the payment of the usual commission for securing salaried positions through licensed employment agencies;
(f) becoming involved in a conflict of interest with an employer or client, without the knowledge and approval of the client or employer, but if unavoidable a professional engineer shall immediately take the following actions: 1. Disclose in writing to his employer or client the full circumstances as to a possible conflict of interest; and
2. Assure in writing that the conflict will in no manner influence the professional engineer's judgment or the quality of his services to his employer or client; and
3. Promptly inform his client or employer in writing of any business association, interest or circumstances which may be influencing his judgment or the quality of his services to his client or employer;
(g) soliciting or accepting financial or other valuable considerations from material or equipment suppliers for specifying their products without the written consent to the engineer's employer or client;
(h) soliciting or accepting gratuities directly or indirectly from contractors, their agents or other parties dealing with the professional engineer's client or employer in connection with work for which the professional engineer is responsible without the written consent of the engineer's employer or client;
(i) use by a professional engineer of his engineering expertise and/or his professional engineering status to commit a felony;
(j) affixing his seal and/or signature to plans, specifications, drawings, or other documents required to be sealed pursuant to 471.025(1), Florida Statutes, when such document has not been personally prepared by the engineer or prepared under his responsible supervision, direction and control;
(k) a professional engineer shall not knowingly associate with or permit the use of his name or firm name in a business venture by any person or firm which he knows or has reason to believe is engaging in business or professional practices of a fraudulent or dishonest nature;
(l) if his engineering judgment is overruled by an unqualified lay authority with the results that the public health and safety is threatened, failure by a professional engineer to inform his employer, responsible supervision and the responsible public authority of the possible circumstances;
(m) if a professional engineer has knowledge or reason to believe that any person or firm is guilty of violating any of the provisions of Chapter 471, Florida Statutes, or any of these rules of professional conduct, failure to immediately present this information to FEMC;
(n) violation of any law of the State of Florida directly regulating the practice of engineering;
(o) failure on the part of any professional engineer or certificate holder to obey the terms of a final order imposing discipline upon said professional engineer or certificate holder;
(p) making any statement, criticism or argument on engineering matters which is inspired or paid for by interested parties, unless the professional engineer specifically identifies the interested parties on whose behalf he is speaking, and reveals any interest he or the interested parties have in such matters;
(q) sealing and signing all documents for an entire engineering project, unless each design segment is signed and sealed by the professional engineer in responsible charge of the preparation of that design segment;
(r) revealing facts, data or information obtained in a professional capacity without the prior consent of the professional engineer's client or employer except as authorized or required by law.
(7) A professional engineer who performs building code inspector or plans examiner duties in accordance with Section 471.045, Florida Statutes, or Sections 468.603(6),(7), Florida Statutes, shall be subject to disciplinary action for commission of the following:
(a) Violating or failing to comply with any provision of Chapter 471, Florida Statutes, or the rules of the Board of Professional Engineers;
(b) Having been convicted of a crime in any jurisdiction which directly relates to the practice of building code inspection or plans examination;
(c) Making or filing a false report or record, inducing another to file a false report or record, failing to file a report or record required by state or local law, impeding or obstructing such filing, or inducing another person to impede or obstruct such filing.
(8) A professional engineer shall not be negligent in the practice of engineering while performing duties as a special inspector. Negligence is herein defined as the failure by a professional engineer to utilize due care in performing in an engineering capacity or failing to have due regard for acceptable standards of engineering and special inspection principles. Failure to comply with the procedures set forth in the Responsibility Rules for Professional Engineers Providing Threshold Building Inspection, as adopted by the Board of Professional Engineers, shall be considered non-compliance with this section unless the deviation or departures therefrom are justified by the specific circumstances of the project in question and the sound professional judgment of the engineer.
Specific Authority 471.033(2) FS.
Law Implemented 471.025(1), 471.033(1)(f), (g), (2) FS.
History--New 1-8-80, Amended 6-23-80, 3-23-81, 6-4-85, Formerly 21H-19.01, Amended 5-14-86, 4-23-87, 11-8-88, 1-11-89, 7-3-90, 11-9-92, Formerly 21H-19.001, Amended 11-27-94. Amended 5-20-02.