VanBreemen v. Dept of Professional Regulation

No. 3--97--0414
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

CHARLES VAN BREEMEN, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
)
v. ) No. 96--MR--868
)
THE DEPARTMENT OF PROFESSIONAL )
REGULATION, ) Honorable
) Robert E. Byrne,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________

JUSTICE McLAREN delivered the opinion of the court:
Plaintiff, Charles Van Breemen, appealed to the circuit court
of Du Page County from an order of the Department of Professional
Regulation (Department). The circuit court affirmed the
Department. Plaintiff now appeals the judgment of the circuit
court. We affirm.
In 1993, the Department solicited from plaintiff a brochure
advertising his services as an expert witness. Plaintiff returned
a letter and a resume detailing his education and work experience.
In 1996, plaintiff received a rule to show cause from the
Department, which stated, in part:
Pursuant to the Illinois Professional Engineering Act,
225 ILCS 325/25, a Rule does hereby issue to Charles
VanBreeman [sic] to show cause why the Department should not
issue an Order to Cease and Desist for unlicensed practice of
Professional Engineering by offering and practicing
professional engineering, as shown by the attached resume and
letter, in violation of 225 ILCS 325/39 and 40.
Plaintiff submitted an answer to the rule to show cause, denying
that he had engaged in the unlicensed practice of professional
engineering, raising several constitutional arguments, and
requesting discovery. No discovery was ordered and no hearing was
held. Approximately one month later, the Department issued an
order in which the Department found that plaintiff had failed to
answer the rule to show cause to the Department s satisfaction and
that plaintiff was engaged in the unlicensed practice of
professional engineering in violation of sections 39 and 40 of the
Professional Engineering Practice Act of 1989 (225 ILCS 325/39, 40
(West 1992)) (the Act). The Department then ordered plaintiff to
cease and desist from engaging in the practice of engineering until
he was properly licensed.
Plaintiff then brought a complaint for judicial review of the
Department s decision in the circuit court of Du Page County,
seeking a determination from the court that the Department s order
was void and a vacation of the void order. The circuit court,
after a hearing, affirmed the Department. This appeal followed.
Plaintiff first contends that the Department failed to make
legally required findings. According to plaintiff, the
Department s order is totally conclusory and not supported by
factual findings. We disagree.
Section 25(c) of the Act provides in part that any rule to
show cause issuing under the Act shall clearly set forth the
grounds relied upon by the Department. See 225 ILCS 325/25(c)
(West 1992). The findings and conclusions of an administrative
agency on questions of fact are to be held to be prima facie true
and correct (735 ILCS 5/3--110 (West 1996)) and must be specific
enough to enable courts to review the decision intelligently. See
Allied Delivery System, Inc. v. Illinois Commerce Comm n, 93 Ill.
App. 3d 656, 664 (1981).
The Department s order found that plaintiff was not licensed
to practice as a professional engineer in the state of Illinois and
that he was engaged in the practice of professional engineering in
the State of Illinois by offering and practicing professional
engineering, as shown by the resume and letter sent by plaintiff
to the Department. We conclude that the findings are adequate.
The order clearly states that the Department relied upon the resume
and letter sent by plaintiff as the basis for its decision and that
the resume and letter held plaintiff out as a professional
engineer. The Department s order contained the necessary factual
findings.
Plaintiff next contends that he did not represent himself to
be a licensed professional engineer. Plaintiff argues that his
resume misrepresents nothing and truthfully states his education,
qualifications and job titles.
Plaintiff misses the point of both the Act and the
Department s cease and desist order. He need not misrepresent his
qualifications and experience in order to violate the Act. He
merely has to practice, offer to practice, or attempt to practice
professional engineering without a license. See 225 ILCS
325/39(b)(4) (West 1992). Professional engineering is the
application of science to the design of engineering systems and
facilities using the knowledge, skills, ability and professional
judgment developed through professional engineering education,
training and experience. 225 ILCS 325/4(n) (West 1992). A person
is construed to be practicing or offering to practice professional
engineering if, among other things, he holds himself out as able to
perform any service that is recognized as professional engineering
practice. See 225 ILCS 325/4(o) (West 1992). Among the many
examples of the practice of professional engineering provided in
the statute is forensic engineering. See 225 ILCS 325/4(o) (West
1992).
Here, plaintiff s cover letter cites his experience in
engineering, including design, product development, failure
analysis, and investigative procedure, and boasts of his
involvement in a case in which he determined the cause of the
failure of a truck seat. Plaintiff s resume reiterates much of
this, lists his educational exploits and employment history, and
accentuates his forensic work and industrial failure
investigations. In these two documents, plaintiff clearly holds
himself out as able to perform many services recognized as
professional engineering practices, especially forensic
engineering. We conclude that the Department did not err in
finding that plaintiff violated the Act by offering to practice and
practicing professional engineering as shown in plaintiff s cover
letter and resume.
Plaintiff next contends that the Department s order is an
invalid prohibition of protected speech. Plaintiff first argues
that sections 39(b)(5) and 40 of the Act bar speech that is only
potentially misleading; according to plaintiff, the Supreme Court
has held that states cannot ban commercial speech that is only
potentially misleading.
Commercial speech is subject to state regulation. Desnick v.
Department of Professional Regulation, 171 Ill. 2d 510, 518 (1996).
Such speech may be regulated by means of appropriate time, place,
and manner restrictions and where such speech is false or
misleading or related to unlawful activity. Desnick, 171 Ill. 2d
at 518. Where a particular content or method of advertising
suggests that it is inherently misleading or where experience has
shown that such advertising is subject to abuse, states may impose
appropriate restrictions. In re R.M.J., 455 U.S. 191, 203, 71 L. Ed. 2d 64, 74, 102 S. Ct. 929, 937 (1982).
While misleading advertising may be prohibited entirely,
certain types of potentially misleading information may not be
absolutely prohibited if the information may also be presented in
a way that is not deceptive. R.M.J., 455 U.S. at 203, 71 L. Ed. 2d
at 74, 102 S. Ct. At 937. Furthermore, the restriction must be in
proportion to a substantial interest and be designed carefully to
meet the State s goal. Central Hudson Gas & Electric Corp. v.
Public Service Comm n of New York, 447 U.S. 557, 564, 65 L. Ed. 2d 341, 349-50, 100 S. Ct. 2343, 2350 (1980). A regulation will not
stand if it provides only ineffective or remote support for the
government s purpose or if the governmental interest could be
served as well by a more limited restriction. Central Hudson, 447 U.S. at 564, 65 L. Ed. 2d at 350, 100 S. Ct. at 2350.
Here, the State s interest is clear; the practice of
professional engineering has been determined to affect the public
health, safety, and welfare and to be subject to regulation and
control in the public interest. 225 ILCS 325/1 (West 1992).
Because the practice of professional engineering merits the
public s confidence, only qualified persons are to be authorized to
practice in this state. 225 ILCS 325/1 (West 1992).
We determine that the Act and the order issued pursuant to the
Act are in proportion to the State s interest in allowing only
qualified persons to practice professional engineering and provide
effective support for that purpose. Furthermore, we conclude that
plaintiff s literature is not only potentially misleading, it is,
in fact, inherently misleading. Plaintiff s letter and resume tout
his engineering background and describe his abilities and prior
experience in areas that are specifically described in the
definitions of professional engineering and professional
engineering practice contained in the Act. See 225 ILCS
325/4(n),(o) (West 1992). Anyone reading plaintiff s literature
would be misled to believe that plaintiff was a licensed
professional engineer. Therefore, we conclude that the
Department s order is not an unconstitutional prohibition of
protected speech.
Plaintiff next contends that both the order and the Act are
unconstitutionally vague. We disagree.
Plaintiff first argues that the Department s order is
unconstitutionally vague because it does not notify him of any
change in his resume or letter that would satisfy the Department,
and thus is a blanket prohibition on everything in the resume and
letter. However, the order clearly states that, by using the
resume and letter, plaintiff offered and practiced professional
engineering. The Department is not required to rewrite plaintiff s
resume for him. Nor is the Department required to inform plaintiff
of methods to evade the statute. Plaintiff has been found to be
practicing professional engineering without a license. Plaintiff
can eliminate the problem by procuring a license or by not
practicing or offering to practice professional engineering.
Plaintiff then argues that the Act is unconstitutionally
vague. First, plaintiff claims that sections 39(b)(5) and 40 of
the Act place a blanket prohibition on the use of the title
engineer without providing any standards for applying these
sections. This court, in interpreting the Act in its incarnation
prior to the current 1989 enaction, found in a similar prohibition
of the use of the term engineer a legislative intent that the
statute be interpreted broadly, and applied wherever there is a
likelihood that the public may be confused or misled. People ex
rel. Department of Registration & Education v. Hund, 68 Ill. App.
3d 56, 59 (1979). Whether use of the word engineer implies that
a person is engaged in the practice of professional engineering is
a fact question to be determined by the circumstances of each case.
Hund, 68 Ill. App. 3d at 58. Looking at the circumstances of that
case, the court concluded that the record supported a finding that
the use of the term engineer in the defendants company title
implied that the defendants were registered professional engineers.
Hund, 68 Ill. App. 3d at 59. Here, plaintiff s letter and resume
clearly describe engineering procedures and practices that are
within the definitions of professional engineering and
professional engineering practice set forth in the Act. We are
convinced that anyone reading the letter or resume would reasonably
believe that plaintiff was a licensed professional engineer, as his
promotional literature touts his abilities to perform professional
engineering services. Therefore, we conclude that the Act is not
vague in its prohibition of the use of the title engineer.
Plaintiff finally argues that the Act is unconstitutionally
vague because it is so broad and indefinite that it is impossible
to determine what aspects of engineering fall within the statute.
We disagree.
Statutes are presumed to be constitutional, and all reasonable
doubts are to be resolved in favor of the legislation. Woodstock
Hunt Club v. Hindi, 291 Ill. App. 3d 1051, 1053 (1997). The party
challenging a statute s constitutionality bears the burden of
demonstrating the invalidity of the legislation. Woodstock, 291
Ill. App. 3d at 1053. A statute will be found unconstitutionally
vague only if its terms are so ill-defined that the ultimate
decision as to its meaning is left to the whims and opinions of the
trier of fact rather than objective criteria or where no standard
of conduct is specified at all. People v. Burpo, 164 Ill. 2d 261,
266 (1995.) Furthermore, a statute must not be so vague that men
of common intelligence must guess at its meaning or application.
Burpo, 164 Ill. 2d at 266.
Here, plaintiff has not sustained his burden of demonstrating
the invalidity of the Act. The Act is as specific as possible in
defining professional engineering and professional engineering
practice and provides dozens of specific examples of such
practice. See 225 ILCS 325/4(n),(o) (West 1992). The meaning of
these terms is not left up to the whims of a fact finder and does
not require guesswork as to its application. We conclude that the
Act is not unconstitutionally vague.
For these reasons, the judgment of the circuit court of Du
Page County is affirmed.
Affirmed.
GEIGER, P.J., and RATHJE, J., concur.