IN THE MATTER OF * BEFORE THE
JUAN A. CABRERA * STATE BOARD FOR
* PROFESSIONAL ENGINEERS
* Case Nos. 03-PE-10 &
03-PE-12
* * * * * * * * * * * *
MEMORANDUM AND ORDER
The State Board for Professional Engineers (the “Board”) heard this case on October 9, 2003, in Baltimore, Maryland. The hearing date was established in a Notice of Charges and Order for Hearing dated September 3, 2003 (the “Notice of Charges”). The Notice of Charges was sent to Juan A. Cabrera (the “Respondent”) by regular and certified mail, return receipt requested, at the addresses described below.
The Notice of Charges ordered the Respondent to appear before the Board and respond to the charges brought against him by the Board. During the hearing on the charges, Peter Martin, Assistant Attorney General, appeared on behalf of the State of Maryland and presented evidence against the Respondent, including the testimony of the complainants and other witnesses. The Respondent appeared late and without counsel. He was advised of his right to be so represented and elected to waive that right. Milena Trust, Assistant Attorney General, served as counsel to the Board. The proceedings were electronically recorded.
The Board charged the Respondent with violations of the following Sections of Business Occupations and Professions Article, Annotated Code of Maryland:
Section 14-501.
Except as otherwise provided in this title, a person may not practice, attempt to practice, or offer to practice engineering in the State unless licensed by the Board.
Section 14-503.
A person may not
(1) use or attempt to use the license of another individual. . . .
Section 14-504.
(a) Other than a professional engineer who obtains a seal as authorized under this title, a person may not use or attempt to use a seal.
The following documents were introduced by the State of Maryland and received into evidence with no objections from the Respondent:
1. Exhibit No. 1 – Notice of Charges and Order for Hearing dated September 3, 2003.
2. Exhibit No. 2 – Record of the Respondent’s licensing status with the Board.
3. Exhibit No. 3 - Report of Investigation in Case No. 03– PE–10 prepared between January 31, 2003, and February 28, 2003 by the Division of Investigative Services, Department of Labor, Licensing and Regulation, together with the attachments.
4. Exhibit No. 4 - Report of Investigation in Case No. 03– PE–12 prepared between January 31, 2003, and February 28, 2003 by the Division of Investigative Services, Department of Labor, Licensing and Regulation, together with the attachments.
5. Exhibit No. 5 – Notarized letter dated March 10, 2003 signed by Augusto E. Bobes of Bobes Associates Consulting Engineers, Inc. and addressed to Mr. Walter Nooe, investigator, Maryland Department of Labor, Licensing and Regulation.
6. Exhibit No. 6 - Report of Investigation in Case No. 03– PE–10 (Reopened) prepared between June 13, 2003 and July 24, 2003 by the Division of Investigative Services, Department of Labor, Licensing and Regulation.
7. Exhibit No. 7 - Report of Investigation in Case No. 03– PE–12 (Reopened) prepared between June 13, 2003 and July 24, 2003 by the Division of Investigative Services, Department of Labor, Licensing and Regulation.
8. Exhibit No. 8 – A printout of the Cedar Design, Inc., website materials.
9. Exhibit No. 9 – A printout of listings from Yahoo Yellow Pages and Netscape Yellow Pages for the last name “Cabrera.”
10. Exhibit No. 10 – M-1 drawing dated August 24, 2001, for New Construction for the Stone Residence.
11. Exhibit No. 11 – MP-1 drawing dated July 7, 2000, for Tenant Improvements for Classic Styles Beauty Salon.
The Respondent did not offer any documents into evidence.
The State of Maryland presented the testimony of the following individuals:
1. Mr. Abba Polangin, the Complainant in Case No. 03-PE-10.
2. Mr. Augusto Bobes, the Complainant in Case No. 03-PE-12 (testifying telephonically).
3. Mr. Walter C. Nooe, Jr., Investigator, Division of Investigative Services, Department of Labor, Licensing and Regulation.
4. Pamela Edwards, Assistant Executive Director, Division of Occupational and Professional Licensing, Department of Labor, Licensing and Regulation.
The Respondent testified himself but did not present other witnesses.
The Board has carefully considered all the evidence presented, including both the testimony of witnesses and the documentary evidence submitted at the hearing. Based on the evidence presented, and considering the demeanor and credibility of the witnesses, the Board makes the following Findings of Fact:
FINDINGS OF FACT
1. The Notice of Charges was sent to the Respondent by regular and certified mail, return receipt requested, at the following addresses: (a) 9200 Basil Court, Suite 510, Largo, Maryland 20774; (b) 9701 Apollo Drive, Suite 100, Upper Marlboro, Maryland 20774; (c) 5020 Nicholson Court, Suite 210, Kensington, Maryland 20895; and (d) 5020 Nicholson Court, Suite 208, Kensington, Maryland 20895.
2. The certified mail sent to the address specified in 1(a) above was returned with the signature of Pamela Miller. The certified mail sent to the addresses specified in 1(b), (c), and (d) above came back unclaimed. The regular mail did not come back as undeliverable from any of the addresses.
3. The addresses more particularly described in 1 (a), (b) and (c) above are the business addresses for Cedar Design, Inc. The Respondent later testified that he has been associated with the Cedar Design for the last several years, as more particularly described below.
4. The address set forth in 1(d) above is the one that the Maryland Motor Vehicle Administration provided to Mr. Nooe on July 24, 2003 as the current address for the Respondent (Board Exhibit No.3, attachment 2-9; Board Exhibit No.6). It is also the address for “CAI Associates, Comp/Draft, Consulting Services,” a company that the Respondent testified he used to own.
5. The Respondent stated that he has not received any of the four notices sent to him. He also testified that he was informed of the hearing on the morning of October 9th by Cedar Design.
6. The Complainant in Case No. 03-PE-10, Mr. Abba Polangin, is a licensed Maryland architect. He is self-employed and operates an architectural firm under the name of “AIP Architects”.
7. On December 12, 2002, Polangin wrote a letter to the Respondent and to Mr. Augusto E. Bobes (Board Exhibit No.3, attachment 2-5), demanding completion of the Respondent’s portion of the work on Shiloh Church of God Seventh Day project (the “Project”). Polangin attached to the letter a copy of the drawing for the Project dated February 5, 2002, bearing what appears to be a seal and the initials of Mr. Bobes, Maryland License No. 11475.
8. Polangin testified that the Respondent was always late with the delivery of his services. Polangin also testified that he could not wait any longer and needed to have the Respondent’s drawings in order to “pull permits”.
9. Polangin also stated that the Respondent has had a long-term relationship with Bobes, a Maryland professional engineer, who stamped and sealed engineering drawings prepared by the Respondent for Polangin.
10. Polangin testified that Bobes, who moved to Florida in approximately 1991, called Polangin after the receipt of his letter and told him that he knew nothing about the Project. Furthermore, Bobes told Polangin that he has not had a relationship with the Respondent for the last ten years.
11. On January 7, 2003, Polangin wrote a letter to the Respondent terminating his services (Board Exhibit No.3, attachment 2-3).
12. Polangin testified that the Respondent never responded to either of his letters.
13. Polangin also testified that between 1991 and 2002 the Respondent provided for him mechanical, electrical and plumbing engineering services on at least thirty-five projects, as these projects are listed on the printout accepted into evidence as the Board Exhibit No. 3, attachment 2-7.
14. Polangin stated that “virtually all” drawings for the projects identified on the printout, with the possible exception of those in the early 1990s, contained what appeared to be Bobes’ seal and signature (Board Exhibit Nos. 10 and 11).
15. On January 8, 2003, Polangin filed a complaint against the Respondent claiming that the Respondent provided “engineering services for numerous projects” for him and prepared drawings that “were signed and sealed with the stamp and alleged signature of Augusto Enrique Bobes.” Polangin also stated in the complaint that he paid the Respondent over $100,000 for the services rendered over the years.
16. The Complainant in Case No. 03-PE-12, Mr. Augusto Bobes, is a licensed Maryland engineer, who owns an engineering firm in Orlando, Florida.
17. Mr. Bobes stated that before moving to Florida in 1991, he operated an engineering firm in Maryland. The Respondent worked for Bobes as an HVAC draftsman from 1986 to 1991.
18. Bobes testified that after receiving Polangin’s December 12, 2002, letter about the Project, he first called him and then wrote back to him on January 8, 2003. Bobes stated in the letter that he had no knowledge of the Project (Board Exhibit No. 3, attachment 2-4).
19. Bobes testified that while he worked in Maryland he kept his professional engineer’s seal in an unlocked drawer in the office. Bobes also stated that he was out of the office quite a bit of the time.
20. Bobes testified that he did not realize that his Maryland seal was missing until he spoke with Polangin.
21. Bobes stated that he never used his middle name on the seal. He commented that the alleged seal on the drawing for the Project that was attached to the Polangin’s December 12, 2002 letter contained Bobes’ middle name “Enrique”.
22. Finally, Bobes testified that he was not involved in any of the projects identified in Board Exhibit No. 3, attachment 2-7.
23. On January 8, 2003 Bobes filed a complaint against the Respondent claiming that the Respondent “has been using [his] Maryland Professional Engineering seal and forging [his] signature presently and for the past 10 years.”
24. Mr. Walter Nooe testified that he prepared all applicable Reports of Investigation in the ordinary course of business as an investigator of the Division of Investigative Services for the Department of Labor, Licensing and Regulation.
25. Mr. Nooe also testified that he tried to contact the Respondent telephonically and left several messages for him in February, 2003, that the Respondent never returned. Mr. Nooe stated that he did speak to the Respondent once when he reached him on the Respondent’s cell phone, but the Respondent claimed that he was out of town at that time, and would call Mr. Nooe back. Mr. Nooe never heard from him.
26. On February 12, 2003 Mr. Nooe also tried to contact the Respondent by leaving a business card at 5020 Nicholson Court, Suite 208, Kensington, Maryland, where the Respondent’s firm, “CAI Associates, Comp/draft. Consulting Services”, was supposedly located.
27. On June 23, 2003, July 3, 2003 and July 10, 2003 Mr. Nooe left messages with various principals of Cedar Design, Inc., including Mr. Darren Comedy, asking them to get in touch with the Respondent and have him contact Mr. Nooe. Mr. Comedy called Mr. Nooe back later and advised him that he spoke with the Respondent and gave him Mr. Nooe’s message.
28. Ms. Pamela Edwards testified that the Board’s licensing records indicate that the Respondent has never been licensed as a professional engineer by the Board (Board Exhibit No.2). Ms. Edwards also testified that her computer search of Cedar Design, Inc.’s website revealed that the Respondent was listed as their “chief, mechanical and plumbing engineer.”
29. The Respondent testified on his own behalf. He stated that he came to Maryland in 1985 with Bobes to join Bobes’ consulting engineering firm.
30. The Respondent testified that Bobes had two sets of seals, one that he kept in the Maryland office of the firm and another one that he kept in the Virginia office of the firm.
31. The Respondent also testified that some time in 1998-1999 he saw Bobes’ seal in the trunk of Polangin’s car that Polangin sold to the Respondent. The Respondent stated that Polangin told him “to keep his mouth shut” when he asked Polangin about the seal.
32. The Respondent testified that during his association with Polangin, he issued unsealed drawings to him and claimed that Polangin was the one who put Bobes’ seal on the drawings. The Respondent also testified that Bobes kept his seal in the house, and not in the office.
33. In addition to providing engineering services to Polangin, the Respondent testified that he provided him with construction administration services.
34. When asked about his address, the Respondent first testified that his correct address was 5020 Nicholson Court, Suite 210, Kensington, Maryland, but then he claimed that it was 9701 Apollo Drive, Upper Marlboro, Maryland.
35. The Respondent stated that he has been working with the Cedar Design group for the last three years. As part of that arrangement, he would come to their offices at the Apollo Drive address “3-4 times a month.”
36. The Respondent testified that he was aware of a previous complaint filed against him with the Board.
37. The Respondent also testified that he did not return Mr. Nooe’s phone calls because he lost the investigator’s phone number, and that he was out of the country between the 16th and 30th of September.
Title 14, Business Occupations and Professions Article, Annotated Code of Maryland, contains clear provisions as to the licensing requirements for persons providing engineering services. The licensing law has been enacted to protect the public from unauthorized practitioners and to assure the public that engineering services are provided by competent individuals licensed by the State Board for Professional Engineers.
The facts are undisputed that the Respondent is not and has never been licensed by the Board. Yet for at least ten years the Respondent provided engineering services on numerous projects without a license and without the responsible supervision of a professional engineer.
The Board has concerns about the conduct of the two complainants. Mr. Polangin, a licensed architect, seemed never to inquire how Mr. Bobes, who lived in Florida, could be signing and sealing drawings prepared by the Respondent in Maryland. Mr. Bobes, a licensed professional engineer, first kept his seal in unlocked drawer despite his frequent absences from the office, and then seemed not to even be aware that his Maryland seal was missing. However, neither Polangin nor Bobes are charged with violations of the applicable law; the Respondent is. In addition, the Board believes that the Respondent was not forthright in his testimony.
The Notice of Charges was dated September 3, 2003 and was sent to four different addresses, all associated with the Respondent. How could the Respondent not get any of them even if he was out of the country between the 16th and 30th of September and none of the regular mail came back as “undeliverable?”
If he had nothing to hide because some one else was at fault, why did he repeatedly avoid returning the investigator’s messages? If in fact the Respondent had evidence that Polangin affixed Bobes’ seal, why didn’t he contact Mr. Nooe or the State Board of Architects or the counties permit officials and report this serious violation to any of them, especially if he knew that he was under the investigation by the Board?
The Board simply does not believe the Respondent. He gave the Board at least two “correct” addresses. He claimed that he had no knowledge of the identity of “Lucia Cabrera PE” even though that name was listed in Yahoo Yellow Pages under the name of “Cabrera Associates Inc” with the address at 5020 Nicholson Court, Suite 210 (Board Exhibit No. 9). He could not coherently state whether or not his firm was a viable entity, or at which point it ceased to exist.
Also, the Respondent claimed that he gave Polangin unsealed drawings and never saw them sealed. At the same time, he testified that he performed construction administration services for Polangin. However, if the Respondent provided those services, he had to have seen the sealed drawings, and his assertion that he did not see the sealed drawings is simply not truthful.
In summary, everything that Cabrera said did not “add up” and the Board does not find his testimony credible. The Board finds that the Respondent was properly served, that he practiced engineering without a license and without responsible supervision, that he used a license and seal of another professional engineer, and that he is guilty of the charges brought against him.
Since the Respondent is not licensed by the Board, the Board cannot revoke or suspend a license. However, the Respondent is subject to a civil penalty pursuant to Section 14-508 (b) of the Business Occupations and Professions Article, Annotated Code of Maryland:
(b) (1) The Board may impose on a person who violates any provision of this title a civil penalty not exceeding $5,000 for each violation.
(2) In setting the amount of the penalty, the Board shall consider:
(i) the seriousness of the violation;
(ii) the harm caused by the violation;
(iii)the good faith of the violator;
(iv) any history of previous violations by the violator; and
(v) any other relevant factors.
(3) The Board shall pay any penalty collected under this subsection into the General Fund of the State.
The Respondent committed serious offenses. He practiced engineering without a license. He also used someone else’s license and seal on numerous engineering drawings. These offenses are not only serious, but they were intentional and were committed over an extended period of time.
Due to the seriousness of violations committed by the Respondent, and considering all the factors which must be considered in the imposition of a civil statutory penalty, the Board concludes that a total penalty of Fifteen Thousand Dollars ($15,000.00) should be assessed against the Respondent. Specifically, (1) a penalty of Five Thousand Dollars is imposed as a result of the Board’s finding the Respondent guilty of violating Section 14-501 of the Business Occupations and Professions Article, Annotated Code of Maryland; (2) a penalty of Five Thousand Dollars is imposed as a result of the Board’s finding the Respondent guilty of violating Section 14-503 of the Business Occupations and Professions Article, Annotated Code of Maryland; (3) a penalty of Five Thousand Dollars is imposed as a result of the Board’s finding the Respondent guilty of violating Section 14-504 of the Business Occupations and Professions Article, Annotated Code of Maryland.
Based upon the foregoing Findings of Fact and Discussion, the Board concludes that the Respondent is guilty of violating the following provisions of Title 14, Business Occupations and Professions Article, Annotated Code of Maryland:
Section 14-501.
Except as otherwise provided in this title, a person may not practice, attempt to practice, or offer to practice engineering in the State unless licensed by the Board.
Section 14-503.
A person may not
(1) use or attempt to use the license of another individual. . . .
Section 14-504.
(a) Other than a professional engineer who obtains a seal as authorized under this title, a person may not use or attempt to use a seal.
The Respondent’s violations of these provisions subject him to sanctions of Section 14-508(b), Business Occupations and Professions Article, Annotated Code of Maryland.
ORDER
Accordingly, it is hereby ORDERED that:
1. The Respondent, Juan A. Cabrera, is guilty of violating Business Occupations and Professions Article, Annotated Code of Maryland, Sections 14-501, 14-503 and 14-504.
2. The Respondent be ASSESSED a civil statutory penalty in the amount of Fifteen Thousand Dollars ($15,000.00).
3. The Respondent shall pay the amount of this fine to the Board within ninety (90) days of the adoption of this Order. The Respondent may contact the Board’s office to inquire about payments in installments in amounts and at time intervals satisfactory to the Board.
4. The records of the Board shall reflect this Memorandum and Order.
SO ORDERED this __ day of __________, 2003, by the State Board for Professional Engineers.
BY:______________________
Melvin Hotz
Chairman