THE DISCIPLINE FILE
The PEG publishes legal summaries of the decisions of hearings of APEGA’s Appeal Board and Discipline Committee. Recommended Discipline Orders appear in their entirety. If so ordered, names and other identifying information are not included. Otherwise, summaries and decisions are published almost verbatim; they are reproductions of official statutory records and therefore subject to minor editing only.
Legal Summaries
APEGA APPEAL BOARD DECISION SUMMARY In the Matter of the Appeals by the APEGA Investigative Committee and MK Engineering Inc. from a decision of the APEGA Discipline Committee in the Matter of the conduct of Lawrence Bermel, P.Eng., and MK Engineer- ing Inc., Permit Holder Date: May 12, 2016 Case No.: 13-005-FH This decision was an appeal to the Appeal Board from an Order issued by the Discipline Committee, sanctioning Mr. Lawrence Bermel and MK Engineering Inc. for their conduct in relation to the issuance of thirty-seven (37) Fire Alarm Verification Certificates (FASVs). Both the Investigative Committee and MK Engineering appealed the Discipline Committee decision to the Appeal Board. In the underlying decision of the Dis- cipline Committee, Mr. Bermel was found to have signed and stamped blank FASVs which MK Engineering then systematically copied and used in 37 projects. The result was that MK Engineering was issuing veri- fications without the supervision of a pro- fessional engineer, which Mr. Bermel con- firmed as he was not aware of several of the Certificates. The Discipline Committee found the actions of Mr. Bermel and MK Engineer- ing to have endangered public safety. The Discipline Committee, in summary, sanctioned Mr. Bermel and MK Engineering by issuing a letter of reprimand, ordering periodic practice reviews, and ordering that Mr. Bermel pay $2,500.00 of the costs of the hearing with MK Engineering pay- ing $71,073.98 of the costs. The Discipline Committee also directed MK Engineering to write to the current owners of the 37
projects and advise them by mail that the FASVs were improperly issued. The Investigative Committee appealed claiming, among other things, that the Disci pline Committee imposed unreasonably lenient sanctions against Mr. Bermel and MK Engineering, and ought to have cancelled the registration of Mr. Bermel and the Permit of MK Engineering. MK Engineering also appealed against the Discipline Committee’s direction requiring it to write to current owners of the 37 projects and stated that the Discipline Committee did not give due consideration to the consequences to third parties of such direction. MK Engineering also appealed on the basis that the costs assessed were excessive. An appeal hearing was help before the Appeal Board following which the Appeal Board dismissed MK Engineering’s appeal, and allowed the appeal of the Investigative Committee in part. The Appeal Board agreed with the Discipline Committee findings that the conduct of Mr. Bermel and MK Engineering were serious matters, and that by allowing the improper certification system to exist Mr. Bermel permitted a false attestation to his involvement in the certification process which did not amount to conducting his affairs in accordance with professional ethics. Furthermore, MK Engineering actively encouraged and developed this system and therefore indirectly placed the safety of the public at risk. The Appeal Board upheld the Discipline Committee decision to require MK to pro- vide letters to the owners of the 37 projects, since the letters were meant to advise the recipients that the MK Engineering FASVs are not valid and the recipients ought to know about it. The Appeal Board varied the
method of delivery of the letters from mail- ing the letters to requiring MK Engineering to hire a process server to affix the letter to the buildings. This variation was made to ensure successful delivery of the letters to the affected properties. The Appeal Board also agreed with the Investigative Committee that sanctions issued by the Discipline Committee were unreasonably lenient, although it did not consider cancellation appropriate in the circumstances. The maximum fine provided for the legislation is $10,000. The Appeal Board assessed a fine of $5,000.00 against Mr. Bermel, representing one-half of the maximum, and the maximum fine allowable of $10,000.00 against MK Engineering. The Appeal Board also varied the decision to address the jurisdictional issues raised by the Investigative Committee. The Appeal Board varied the Practice Review portion of the order such that any issues discovered during the practice reviews could be referred to the Investigative Com- mittee for further investigation, which could result in additional disciplinary proceedings should that be warranted. The Investigative Committee also ar- gued that the Discipline Committee erred by ordering that if the costs assessed were not paid within a certain time frame the regis- trations of Mr. Bermel and MK Engineering would be cancelled. The Act only permits suspension in the event of non-payment of costs, and therefore the Appeal Board var- ied this aspect of the decision to coincide with the requirements of the Act. Therefore failure to pay costs as required will result in suspension until payment is made. Following the issuance of the Appeal Board decision, the Investigative Committee sought a direction from the Appeal Board that MK Engineering and Mr. Bermel be
60 | PEG WINTER 2016
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