Effective May 17, 2010
|245:15-23-1||Prima facie evidence|
|245:15-23-2||Grounds for violations and penalties|
|245:15-23-3||Additional penalties (fines) for violations|
|245:15-23-4||Fraud or misrepresentation|
|245:15-23-7||Misconduct or dishonest practice|
|245:15-23-8||Duty to refer alleged violations to Executive Director|
|245:15-23-9||Filing a complaint; forms and evidence|
|245:15-23-12||Investigation report and recommendations|
|245:15-23-14||Civil and formal proceedings|
|245:15-23-16||Hearing disqualification procedures|
|245:15-23-17||Powers of hearing authority|
|245:15-23-18||Findings of the Board and penalties|
|245:15-23-19||Proposed hearing orders|
|245:15-23-20||Issuing of orders|
|245:15-23-22||Procedures to file exceptions to proposed orders|
|245:15-23-23||Rehearing, reopening or reconsideration|
|245:15-23-25||Emergency hearings and orders|
(a) A person, firm, or entity shall be construed to practice or offer to practice engineering or land surveying, who does any of the following:
(1) practices any branch of the professions the board regulates, or
(2) by display or verbal claim, sign, advertisement, contract, card or other printed, engraved, or written instrument or device, bearing a person's, firm's, or entity's name or in any other way represents to be a Professional Engineer or Land Surveyor, or a firm providing or having the qualifications to provide engineering or land surveying services, or
(3) through the use of some other title implies that the person, firm, or entity is a Professional Engineer or Land Surveyor, or a firm providing engineering or land surveying services, or
(4) holds himself/herself or itself out as having the qualifications to, is able to, or who does contract, offer or perform any engineering or land surveying service.
(5) The following actions shall not be violations under 59 O.S. 475.1 et seq and the rules of the Board provided that the licensee is licensed in the licensee's home jurisdiction, meets the requirements of licensing for Oklahoma, discloses that the licensee is not licensed in Oklahoma, and obtains a license in Oklahoma prior to commencing the practice of engineering or land surveying in Oklahoma:
(A) Advertising in national publications or electronic media, provided there is no offering of professional services in jurisdictions where not licensed.
(B) Responding to letters of inquiry regarding requests for proposals, provided there is written disclosure that the engineer/surveyor and firm are not licensed in this jurisdiction and the response is limited to inquiries regarding the scope of project and to demonstrate interest.
(C) Responding to letters of inquiry from prospective clients, provided there is written disclosure that the engineer/surveyor and firm are not licensed in this jurisdiction and the response is limited to inquiries regarding scope of project and to demonstrate interest.
(D) Using the title/designation Professional Engineer, Licensed Engineer, P.E., Professional Land Surveyor, Licensed Land Surveyor, or P.L.S. or the like on letterheads, or business cards from an office in the jurisdiction where licensure is held.
(b) Regardless of the above, proposals may not be submitted, contracts signed, or work commenced until the engineer/surveyor and firm become licensed in Oklahoma.
(c) Any violation of such action noted by this Section shall be sufficient to justify an injunction or any other order or a conviction without evidence of a general course of conduct. The Board shall determine if other legal procedures and penalties are necessary and shall have the power to proceed with any and all legal procedures in addition to the injunction or other such orders issued.
(a) Knowledge of Rules. All persons licensed under the provisions of the act are charged with having knowledge of these Rules as well as amendments from time-to-time which are made known in writing to every licensee and applicant for licensure.
(b) Convictions. A licensee of this Board who has been fined, received a reprimand, had a license revoked, suspended, or denied in another jurisdiction for reasons or causes which the Board finds would constitute a violation of the law governing the practice of engineering or surveying in this jurisdiction or any rule or regulation promulgated by this Board may be cause for levying a fine, reprimanding the licensee, denying, revoking, or suspending a license to practicing engineering or surveying by the licensee in this jurisdiction.
Administrative penalties may be levied by the Board separately or in addition to any other penalties or remedies determined by the Board. The Board may seek criminal and civil relief, including injunctive relief, through the courts for violation of the Statutes regulating professional engineering and land surveying, Rules in this Chapter, regulations, or to enforce any order issued by the Board. The Board may seek relief or remedies through the boards and administrative entities of Oklahoma or other states.
(A) Any licensee, firm, entity, or person associated with or under the responsible charge of any licensee, firm, or entity, holding a Certificate of Licensure and/or a Certificate of Authorization who shall make an oral or written statement or communication to any person that is:
(1) false and a material misrepresentation, and/or
(2) made with the knowledge that the statement is false or made while ignorant of the truth, and/or
(3) made with the intent that the statement shall be relied on by the person and in a manner reasonably foreseeable; provided, and/or
(4) the person to whom the statement is made is ignorant of the falsity of the statement, or
(5) the statement is justifiably relied upon by such person, and/or
(6) such person is caused damage or injury, shall have committed a fraud.
(B) Any licensee, firm, entity, or person associated with or under the responsible charge of any licensee, firm, or entity, holding a Certificate of Licensure and/or a Certificate of Authorization who shall make an oral or written statement in any document, report, examination, investigation, advice, representation, plans or specifications that is materially false or misleading either in its content or omission of content there from, or who in any other manner, method or conduct acts in a way so as to mislead or deceive any person, shall be guilty of misrepresentation.
(a) The Professional Engineer or Land Surveyor is responsible for many professional, technical, ethical and tactical judgments relating to planning, surveys, reports, studies, designs, plans and specifications, construction materials, methods, techniques and systems processes. The licensee's education, training and experience, or the education, training and experience of the licensee in responsible charge of the services of any Firm, should enable such licensee to make such determinations with confidence in a successful result.
(b) Each licensee, firm, entity, or person representing same, shall exercise prudent and deliberate consideration in decisions, made only after responsible and thorough investigation, research and, when necessary, expert advice and assistance.
(c) When the results from such decisions are not reasonably predictable, each licensee,
firm, entity, or person representing same, shall so advise the client, and fully disclose the implications involved.
(d) When such decisions require procedures, techniques, materials, or systems unfamiliar to the planning, design and/or construction team involved, the licensee, firm, entity, or person representing same shall exercise additional care and attention to the process, advancing the result sought.
(e) If, in the judgment of the Board, a licensee, firm, entity, or person representing same, does by its failure to discharge its duties, obligations, and responsibilities under 59 O.S., Sections 475.1 et seq and the Rules of the Board or the laws and regulations of another jurisdiction demonstrate carelessness which is in reckless disregard for the safety, property or lives of others, or is so great it appears to be a conscious violation of other people's property, or rights to health, safety or welfare, the Board may deem such neglect to be gross negligence.
(a) Licensees have been licensed under the authority of the Statutes regulating professional engineering and land surveying which establishes minimum competence to provide engineering and land surveying services in the State of Oklahoma. Licensees shall continue their professional development after licensure, improving and increasing their proficiency and skills, knowledge and abilities. The licensee, firm, or entity shall undertake only those professional assignments the licensee, firm, or entity is qualified to perform and lawfully authorized to undertake.
(b) The following practices, among others may be deemed gross incompetence by a licensee, firm, or entity or person representing same:
(1) A deficiency on the part of a licensee in the basic knowledge and skill necessary to the practice of engineering or land surveying such that the licensee does not demonstrate an ability to practice engineering or land surveying at the threshold level of professional competence for projects of the kind and complexity undertaken in the disciplines practiced thus endangering the property, safety, health of others or welfare of the public.
(2) Failure to engage other competent licensed architects, engineers or land surveyors when the licensee has contracted to furnish services outside of the licensee's area of competence.
(3) Practicing engineering or land surveying while under the influence of alcohol, drugs or mentally impaired.
(a) The following practices, among others, by a licensee, firm, or entity or person representing same, may be deemed misconduct and a violation:
(1) Acts which evidence attempts to violate any laws or rules of this or any other state relating to licensure to practice engineering or land surveying.
(2) Acts which evidence a disregard or indifference toward the rules or statutes governing the practice of engineering or land surveying regulations, codes, ordinances and recognized standards including but not limited to those regulating the design of facilities to be constructed.
(3) Acts which evidence attempts to violate or do so violate the Statutes Regulating Professional Engineers and Land Surveyors or Rules in this Chapter or assist any other person to attempt or to do so.
(4) Acts which evidence attempts to conceal personal interests in conflict with responsibilities of service to the public or a client.
(5) Acts which evidence, through commission or omission, a failure or refusal to reasonably communicate with the client, so that the client shall be reasonably informed of the status of any services provided or agreed to be provided by the licensee or a firm holding a Certificate of Licensure and/or Certificate of Authorization under the responsible charge of the licensee.
(6) Acts which evidence a detriment to a client caused by a personal or the firm's interest which conflicts with the responsibility owed to the client by a licensee or a firm holding a Certificate of Licensure and/or Certificate of Authorization under the responsible charge of the licensee.
(b) The following practices, among others, by a licensee, firm, or entity or person representing same, may be deemed a dishonest practice and a violation:
(1) Acts which evidence attempts through commission or omission, to mislead or defraud any person, firm, or entity.
(2) Acts which evidence attempts to bribe any person, firm, or entity, who may influence the selection of any licensee, firm, or entity. Kickbacks, donations or forgiveness offered or paid to gain improper advantage in selection will be considered bribes.
(3) Acts evidenced by exaggerated, misleading, deceptive or false statements in claims about professional qualifications.
(a) Proceeding to levy a fine upon an individual, licensee, entity or firm, or to reprimand, place on probation, suspend, refuse to renew, or to revoke an individual's Certificate of Licensure or a firm's Certificate of Authorization may be initiated by any person who may prefer charges of violations of these Rules.
(b) All charges may be made on forms prescribed by the Board, which are available from the Board. The information requested may include the name and address of the complainant and the respondent, a concise statement of the complaint with facts supporting the allegations that a violation has occurred and statement of the relief sought. The complainant may remain anonymous if sufficient information is provided to conduct an investigation.
(c) When a complaint is received by the Board in which an individual, licensee or firm is charged with a violation, it is referred to an investigation committee designated by the Executive Director. The investigative committee makes a determination if probable cause exists for taking further action or for issuing a complaint. Action against the individual, licensee, entity or firm holding a Certificate of Authorization may be brought in the name of the Board or brought before the Board in the name of the claimant versus the respondent.
(d) In the event the investigation committee determines that a probable cause exists, the legal counsel of the Board is requested to prepare a formal complaint.
(e) The formal complain shall be personally served or mailed to the last known address of the parties charged or firm holding the Certificate of Authorization at least 30 days before the date fixed for hearing.
(f) The complain shall show the time, place, and nature of the hearing, a statement of legal authority and jurisdiction under which the hearing is to be held, a reference to the particular section of the statutes and rules involved, and a short and plain statement of the matters asserted. The notice of the formal complaint shall indicate that at any hearing the accused individual, licensee, entity or firm holding the Certificate of Authorization shall have the right to appear in person or by counsel or both to cross-examine witnesses in his/her or its defense and to produce evidence and witnesses or his/her or its own defense. If the accused person or firm fails or refuses to appear, the Board may proceed to hear and determine the validity of the charges.
(g) In contested cases, irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied in civil cases in the court of common pleas shall be followed. The Board shall give effect to the rules of privilege recognized by law. Objection to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interest of the parties involved will not be prejudiced substantially, any part of the evidence may be received in the form of copies or excerpts if the original is not readily available. Any party may conduct cross-examination. Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the Board's specialized knowledge. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The Board's experience, technical competence, and specialized knowledge may be utilized in the evaluation of evidence.
Those matters in which informal resolution is sought may be referred to the investigation committee or terminated as provided in OAC 245:15-23-9. Any proposed final disposition of a violation by the Director of Enforcement shall be recommended to the Board for approval.
(a) General provisions.
(1) At any hearing, the licensee, firm, entity, or person, charged with misconduct or violation shall enjoy the rights:
(A) against self-incrimination; and
(B) of confidential communication with his/her spouse, attorney, clergyman, priest and/or physician; and
(C) of withholding confidential or privileged records and files of any official or agency of any state or of the United States which, by any statute of such state or of the United States; and
(D) of cross examination; and
(E) of counsel.
(2) All motions, except for a motion to continue, must be filed seven (7) days prior to the scheduled date of the hearing. Responses to motions, if any, must be filed two (2) days prior to the hearing.
(3) The parties shall exchange names of all witnesses they anticipate testifying ten (10) days prior to the hearing. Additional witnesses may be called subject to the approval of the Board.
(4) The first motion for a continuance filed on behalf of a party may be granted by the Executive Director.
(b) Hearing record.
(1) The hearing records shall include:
(A) all pleadings, motions and intermediate rulings;
(B) evidence received or considered;
(C) questions and offers of proof, objections, and ruling thereon;
(D) proposed findings and exceptions;
(E) any decision, opinion, or report by the officer presiding at the hearing, if any;
(F) any records, including records of the Board, of which the Board chooses to take judicial notice;
(G) all staff memoranda or data submitted to the hearing officer, if any, or member of the agency in connection with their consideration of the case.
(2) Oral proceedings or any part of the oral proceedings shall be transcribed on request of any party. The requesting party shall pay all costs incurred for the original transcript and other parties requesting copies shall bear the cost of additional copies.
(3) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
(c) Methods of hearings. Hearings shall be conducted by one of the following methods as determined by the Board:
(1) by the Board;
(2) by a member or emeritus member of the Board or its designee acting as hearing examiner;
(3) by an attorney licensed to practice before the Supreme Court of the State of Oklahoma acting as hearing examiner.
(d) Unless precluded by law, any party may waive rights and proceed by stipulation, agreed settlement, consent order or default. No provision in the rules shall be construed as prohibiting the Board from continuing to a later date, suspending or holding in abeyance any formal or civil proceeding pending the outcome of informal negotiation or informally agreed upon terms.
Any Board Member or Hearing Examiner shall withdraw from any proceeding in which the individual cannot afford a fair and impartial hearing or consideration. Any party may request such disqualification by filing an affidavit promptly upon discovery of the alleged grounds for disqualification; stating the particular grounds for disqualification. The issue shall be referred to the Board to be determined promptly by the Board, or the remaining members thereof, and upon disqualification the Board shall assign another Hearing Examiner and if necessary, as provided by Statutes of Oklahoma, seek appointment of an additional member or members pro-tem.
A hearing authority shall require the furnishings of information; the attendance of witnesses; and the production of books, records, papers or other objects as may be necessary and proper for the purposes of the hearing. Any party to a proceeding may take depositions of witnesses in the same manner as provided by law in any civil actions before courts of record and such depositions may be submitted into evidence subject to the right of objection at the time of hearing as provided by law in any civil actions before courts of record. The hearing authority may admit into evidence and take judicial notice of any records, including records of the Board, that it may deem relevant to the proceeding.
(a) The Board may find on any one or more of the charges:(b) If the finding is guilty, the Board shall then determine the administrative penalty to be imposed. The administrative penalty resulting from a finding of guilty may be one or more of the following:
(1) The charges are dismissed for insufficient evidence;
(2) The charges are dismissed without prejudice;
(3) The charges are dismissed with prejudice;
(4) The respondent is found not guilty;
(5) The respondent is found guilty.
(6) Administrative Penalty
(c) The Board will consider past disciplinary action taken against any licensee person, firm, or entity found guilty of misconduct or violation in any present proceeding. Such past conduct shall not be evidence of guilt in the present proceeding but will be considered only in determining appropriate sanctions or penalties to be imposed by the Board in the present proceeding.
(d) The order of the Board in each case is a public record.
At any hearing not heard by a majority of the members of the Board or when the case hearing record has not been read by a majority of the members of the Board, the decision, if adverse to a party to the proceeding, shall not be made until a proposed order is served upon the parties and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the Board. The proposed order shall be accompanied by statements of the reasons therefore and of each issue of fact or law necessary to the proposed order, prepared by the person who conducted the hearing or by a person who has read the record. The parties, by written stipulation, may waive compliance of any part of with this Section.
All orders, whether proposed or final, shall be issued within one hundred twenty (120) days of the conclusion of a hearing.
A final order adverse to a party in a proceeding shall be in writing. The final order shall be consistent with the order of the Board entered at the hearing. A final order shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Parties shall be notified either personally or by mail of any order. Upon request, a copy of the order shall be delivered or mailed to each party and to the attorney of record.
Exceptions to a proposed final order, together with a brief in support, shall be filed with the Executive Director within ten (10) days of the submission of the proposed final order. If exceptions are filed, the Executive Director shall set the time and place for the Board to consider the exceptions and shall cause notice of the time and place to hear the exceptions to be mailed to the licensee, person, firm, or entity or to the attorney of record. Such time shall not be less than twenty (20) days after said notice is mailed. Briefs in response to the exceptions must be filed with the Board at least seven (7) days before such meeting. The licensee, person, firm, or entity may personally or through counsel be present and present oral argument to the Board in support of the exceptions. No exceptions to the final order shall be considered without full compliance of this section by the respondent, individual, firm, or entity.
(a) A decision by the Board shall be subject to rehearing, reopening or reconsideration by the Board if requested in writing and filed with the Executive Director within ten (10) days from the date of filing of the Final Order with the Executive Director. The grounds for requesting such action shall be either:
(1) newly discovered or newly available evidence relevant to the issues; or
(2) probable error committed by the Board or hearing examiner in the proceeding or in its decision such as would be grounds for reversal on judicial review of the order; or
(3) need for further consideration of the issues and the evidence in the public interest; or
(4) a showing that issues not previously considered should be examined in order to properly dispose of the matter; or
(5) fraud practiced by the prevailing party or of procurement of the order by perjured testimony or fictitious evidence.
(b) The order of the Board granting rehearing, reconsideration, or review of the petition of a party, shall set forth the grounds which justify such action.
When it comes to the Board's attention that persons, firms, or entities residing in or out of the State of Oklahoma may be engaged in the practice of engineering or land surveying in Oklahoma, as defined by the Statutes regulating professional engineering and land surveying and Board's current rules, and further that such person, firm, or entity may be engaged in the unauthorized practice of these professions or may not meet the requirement thereof, the Board may institute proceedings as provided in the rules against licensee, persons, firms, or entities for the purpose of determining if any violation of the law, rules or orders has occurred and may take such action as is permitted pursuant to the provisions of 59 O.S., Sections 475.1 et seq. and may, in addition, bar said licensee, person, firm, or entity concerned and their employers from licensure with the Board or the practice of engineering or land surveying within the State of Oklahoma.
(a) If the Board shall find an emergency to exist which, in the opinion of the Board, poses an imminent danger to the public health, welfare, or safety or which threatens irreparable harm to any person, firm, or entity, the Board may order hearings as provided herein upon giving twenty-four (24) hour notice to the parties concerned, and may enter such orders as will, in the judgment of the Board, maintain or restore the public health, welfare and safety pending hearing by the Board or judicial review of the Board's actions.
(b) Whenever in the judgment of the Board any licensee, person, firm, or entity has engaged, or is about to engage, in any acts or practice which constitute, or will constitute, a violation of 59 O.S., Section 475.1 et seq., the Board may make application to the appropriate court for an order enjoining such acts or practices, and upon a showing by the Board that such licensee, person, firm, or entity has engaged, or is about to engage, in any such acts or practices, an injunction, restraining order, or such other order as may be appropriate shall be granted by such court, without bond.
(c) Nothing in the rules dealing with violations, penalties or findings of facts shall preclude the Board from proceeding through any legal proceedings necessary to enforce its findings, orders or administrative penalties.