STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM BRYON GROOVER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2695

)

BOARD OF PROFESSIONAL LAND )

SURVEYORS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on July 18, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: William Byron Groover, pro se

845 Southwest 12th Street

Fort Lauderdale, Florida 33315

For Respondent: Ann Cocheu

Assistant Attorney General Suite 1603, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioner's application for licensure by examination as a professional land surveyor should be approved.

PRELIMINARY STATEMENT

By letter dated March 28, 1989, respondent denied the application of petitioner for examination as a professional land surveyor. The predicate for respondent's denial was petitioner's conviction in 1981 of possession of more than 20 grams of marijuana, and its perception that such conviction demonstrated a lack of good moral character and an adjudication of guilt of a crime directly related to the practice or ability to practice land surveying. Petitioner filed a timely request for formal hearing, and the matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner testified on his own behalf, and called Daniel Carnahan and Stephen Gibbs as witnesses. Respondent called no witnesses, but its exhibits 1 and 2 were received into evidence.

The transcript of hearing was filed August 8, 1989, and the parties were granted leave until August 18, 1989, to file proposed findings of fact.

Respondent elected to file such proposals, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On November 18, 1988, petitioner, William Byron Groover (Groover), filed an application with respondent, Board of Professional Land Surveyors (Board), for licensure by examination as a professional land surveyor. By letter of March 28, 1989, the Board denied Groover's application predicated on his disclosure in his application of a conviction for possession of marijuana in 1981, and its conclusion that such conviction demonstrated a lack of good moral character and an adjudication of guilt of a crime directly related to the practice or ability to practice land surveying. Groover filed a timely request for formal hearing to contest the Board's decision.

   
   

2. At hearing, the proof demonstrated that on September 16, 1981, Groover was convicted of possession of more than 20 grams of cannabis (marijuana), a third degree felony proscribed by Section 893.13, Florida Statutes, and on October 16, 1981, he was sentenced to a term of two years confinement and fined

   $2,000.00 for his offense.

   
   

3. Regarding the circumstances surrounding his conviction for possession of marijuana, the proof demonstrates that in May 1981, Groover was assisting an acquaintance, James Billeter, move furniture from Florida to Arizona when Billeter's van was stopped by a Florida Department of Agriculture inspector after he failed to stop at an inspection station on I-10 in Suwannee County. Upon inspection of the van, boxes containing approximately 210 pounds of marijuana were discovered among the furniture in the van, as well as a "baggie" marijuana in the cab. Groover, whose testimony is credited, denied any knowledge that the van contained any controlled substances, other than the baggie of marijuana in the cab. As to the baggie, which contained about 21 grams of marijuana, Groover acknowledged its presence, and conceded that he and Billeter had smoked some of that marijuana on their trip.

   
   

4. On July 5, 1982, Groover was admitted to Lawtey Correctional Institute to serve his sentence, and on July 5, 1983, he was released for having completed his sentence. During the course of his incarceration, Groover conducted himself in a responsible manner.

   
   

5. Following his release from prison in 1983, Groover was employed by Berry and Calvin Land Surveying and Engineering, and remained so employed until May 1988 when he began his current employment with Stephen H. Gibbs Land Surveyor. By those who know of his work, Groover is considered learned in land surveying, dependable, and trustworthy.

   
   

6. While Groover was convicted of possession of marijuana in 1981, he has since avoided any controlled substance, and has demonstrated his rehabilitation through dependable and laudable labor in the field of land surveying. Under the circumstances, his conviction in 1981 does not detract from the finding that he currently possesses the requisite good moral character to practice land surveying in the state of Florida.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Pertinent to this case, Section 472.013, Florida Statutes, provides:

   
   

   (2) An applicant shall be entitled to take the licensure examination to practice in this state as a land surveyor if the applicant is of good moral character....

   * * *

   (5)(a) Good moral character means a personal history of honesty, fairness, and respect for the rights of others and for laws of this state and nation.

   (b) The board may refuse to certify an applicant for failure to satisfy this requirement only if:

   1. There is a substantial connection between the lack of good moral character of the applicant and the professional responsibilities of a registered land surveyor; and

   2. The finding by the board of lack of good moral character is supported by clear and convincing evidence.

   
   

9. Here, there was no demonstrated connection between Groover's 1981 conviction for possession of marijuana and the professional responsibilities of a registered land surveyor. As importantly, in light of Groover's good conduct post dating his conviction, his 1981 conviction for possession of marijuana does not detract from the conclusion that he currently possesses the requisite good moral character to practice land surveying. See e.g., Zemour, Inc. v. Division of Beverages, 347 So.2d 1102 (Fla. 1st DCA 1977).

   
   

10. As an additional basis for the denial of Groover's application, the Board relied on the provisions of Section 472.033(1)(d), Florida Statutes. That section permits the Board to deny an application for licensure when an applicant has:

[Been] convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of land surveying or the ability to practice land surveying....

Here, there was no demonstrated nexus between Groover's 1981 conviction and the practice of land surveying or the ability to practice land surveying.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a final order be entered approving the application of William Bryon Groover for licensure by examination as a professional land surveyor.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of September 1989.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2695

The Board's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 3.

2. Subordinate.

3. To the extent relevant, addressed in paragraphs 2 and 3.

4. Addressed in paragraph 3.

5. Not relevant since there was no showing Groover suffered any substance abuse or alcoholic problem necessitating treatment.

6. Not relevant since not a basis for the denial of his application, and not an issue thereafter timely raised by the Board prior to hearing. Even if properly raised, such facts do not detract from the finding that Groover currently possesses the requisite good moral character to practice land surveying.

7. Addressed in paragraph 5.

8. Addressed in paragraph 3, otherwise rejected as subordinate or as comment on the evidence.

COPIES FURNISHED:

Mr. William Bryon Groover 892 Southwest 14th Court

Fort Lauderdale, Florida 33315

Ann Cocheu

Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050

Rex Smith, Executive Director

Board of Professional Land Surveyors Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-002695

Orders for Case No: 89-002695