STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORLANDO GRANDAL, )

)

Petitioner, )

)

vs. ) Case No. 00-4178

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) BOARD OF PROFESSIONAL SURVEYORS ) AND MAPPERS, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on December 19, 2000, at Tallahassee, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Elena Moure-Domecq, Esquire

Moure-Domecq, P. A.

9260 Sunset Drive, Suite 107

Miami, Florida 33173

For Respondent: Edward A. Tellechea, Esquire

Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

Whether Petitioner's license as a Professional Surveyor and Mapper became void on March 1, 1997, by operation of Section

455.271, Florida Statutes. If so, whether the Board of Surveyors and Mappers (Board) has the authority to reinstate Petitioner's license in any manner other than that set forth in Section 455.271(6), Florida Statutes.

Whether the Board is estopped from asserting that Petitioner's license should not be reinstated.

Whether Petitioner is entitled to have his license reinstated by operation of Section 472.041, Florida Statutes.

PRELIMINARY STATEMENT

The Board is an agency of the State of Florida with the duty to regulate those licensed as Professional Surveyors and Mappers. The Department of Business and Professional Regulation (DBPR) is the agency of the State of Florida that actually issues such licenses. The predecessor agency of DBPR issued to Petitioner a Surveyors and Mappers license on July 11, 1986. At all times pertinent to this proceeding, Petitioner was required to renew his license every two years. There is no dispute that Petitioner maintained his license in an active status through the 1993-94 licensing biennium. There is a dispute whether he acted to renew his license in 1995.

In November 1996 Respondent mailed to Petitioner's address of record a notice that his license would become null on

March 1, 1997, unless he took action as directed by the notice. Petitioner did not timely respond to the notice. Respondent

asserts that Petitioner's license became null on March 1, 1997, by operation of Section 455.271, Florida Statutes.

In November 1999 Petitioner requested in writing that the Board reinstate his license. Petitioner and his attorney appeared before the Board at its meeting on January 13, 2000. The Board accepted Petitioner's representation that he had not received the November 1996 notice warning him that his license was about to be declared null and voted unanimously to reinstate Petitioner's license.

Thereafter, an attorney for DBPR filed a written motion for the Board to reconsider its vote to reinstate Petitioner's license on the grounds that the Board lacked the legal authority to reinstate a license that had become null pursuant to statute. At its meeting on May 18, 2000, the Board granted DBPR's motion and subsequently voted to rescind its prior vote to reinstate Petitioner's license.

Petitioner thereafter attempted to appeal the Board's action at its May meeting by filing a notice of appeal with the First District Court of Appeal. The appeal was dismissed on August 30, 2000, based on Petitioner's failure to exhaust administrative remedies.

After his appeal was dismissed, Petitioner requested a formal administrative hearing, the matter was referred to the

Division of Administrative Hearings, and this proceeding followed.

At the final hearing, the parties presented four joint exhibits, each of which was admitted into evidence. Petitioner testified on his own behalf and presented the additional testimony of Linda Church, Assistant Bureau Chief of Licensure and Revenue for DBPR. Ms. Church manages the licensure side of the bureau. Petitioner offered three additional exhibits, each of which was admitted into evidence.

Respondent presented the testimony of Christa Patterson, the program administrator for the Board. Respondent offered one additional exhibit, which was accepted into evidence.

A Transcript of the proceedings was filed on January 10, 2001. Each party filed a Proposed Recommended Order, which has been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was initially licensed as a Professional Surveyor and Mapper on July 11, 1986, and issued license number 0004297. Such licenses must be renewed every two years pursuant to Section 472.017, Florida Statutes.

2. The Board is an agency of the State of Florida with the duty to regulate those licensed as Professional Surveyors and Mappers. Pursuant to Section 472.015, Florida Statutes, DBPR is

   the agency of the State of Florida that actually issues such licenses.

3. It is undisputed that Petitioner renewed and maintained an active license through the 1993/1994 biennium, which ended February 28, 1995.

4. There is a conflict in the evidence as to whether Petitioner renewed his license after the 1993/1994 biennium. Petitioner testified that he mailed to DBPR by regular mail a form renewing his license for the 1995/1996 biennium, enclosed a check in the appropriate amount with the renewal form, and requested in writing on the back of the renewal form that the status of his license be changed from active to inactive because he could not at that time meet continuing education requirements. Petitioner produced a copy of the renewal form and a copy of the check, dated February 10, 1995, he said he mailed to DBPR. Petitioner did not know whether his check had been cashed, and he did not receive anything from DBPR reflecting that his license had been renewed and placed in an inactive status.

5. Whenever any licensee renews a professional license, DBPR issues and mails a two-part license containing a wallet portion and a display portion that verifies the renewal. 3/

6. Petitioner made no effort to determine why his check had not been cashed or why he had not received his renewed

   license. Petitioner's failure to follow-up on his renewal request can be explained, in part, by the fact that his life was in disarray, both from a personal and a professional perspective. During this period in 1995, Petitioner had closed his surveying business and was working in an unrelated business, he was living in the marital residence on an intermittent basis, and he was depending on his estranged spouse and his children to deliver his mail to him.

7. Respondent's records do not reflect that Petitioner took any action after the 1993/94 biennium to renew or inactivate his license. Had Petitioner taken such action, Respondent's records would have contained a renewal request form, the request to inactivate the license, and documentation that a renewed license had been forwarded to Petitioner. Had DBPR received a renewal check from Petitioner, its records would reflect that the check had been received and negotiated. The conflict in the evidence is resolved by finding that Petitioner failed to renew his license after the 1993/1994 biennium.

8. On March 1, 1995, Petitioner's license became delinquent pursuant to Section 455.271(5), Florida Statutes. On March 9, 1995, DBPR changed its computer records to reflect that Petitioner's license status had been changed to delinquent.

9. In November 1996, Petitioner's address of record with DBPR was his marital residence, 1620 Southwest 99 Court, Miami,

   Florida. Petitioner continued to use the marital residence as his address of record with the Board and DBPR until November 1999. There was a dispute in the evidence as to whether DBPR and the Board had Petitioner's correct address of record.

   Petitioner introduced a roster of individuals and firms holding active Professional Surveyors and Mappers licenses that was prepared from the Board's data base as of October 1994. This roster contained an incorrect address for Petitioner.

   Respondent established that this roster was not used by either the DBPR or the Board to mail any of the forms or notices at issue in this proceeding. Respondent also established that both DBPR and the Board had Petitioner's correct address of record at all times pertinent to this proceeding. The conflicting evidence is resolved by rejecting Petitioner's contention that the pending cancellation notice was not mailed to his address of record in November 1996.

10. Petitioner testified that he never received any notice that his license was about to be cancelled.

11. The records of DBPR established that a Notice of Pending Cancellation of License was processed by DBPR on November 18, 1996, and mailed to Petitioner at his address of record on November 22, 1996. The notice advised that Petitioner's license would become null and void on March 1, 1997, if the license was not placed on an active or inactive

    status by that date. The notice also advised that it was the only notice Petitioner would receive before his license became null.

12. Petitioner initiated no communication with either DBPR or the Board in 1996, 1997, or 1998.

13. On March 1, 1997, Petitioner's license became null by operation of Section 455.271(6), Florida Statutes. DBPR entered in its computer system on March 9, 1997, that the status of Petitioner's license had been changed from the classification of "delinquent" to the classification of "null and void."

14. In 1999, Petitioner decided to return to activities requiring licensure as a Professional Surveyor and Mapper. When he applied for a job with a surveying company in the fall of 1999, he learned that his license was classified null and void.

15. Petitioner, through attorney T. S. Madson, II, moved the Board to reinstate his license and requested the opportunity to present argument in support of his motion at the Board meeting scheduled for January 12-14, 2000, in Tallahassee, Florida.

16. Mr. Madson and Petitioner appeared before the Board on January 13, 2000. Upon hearing Petitioner's claim that he had not received the pending cancellation notice in November 1996, the Board voted to reinstate his license. 1/ The Board did not enter a written order memorializing that vote.

17. On March 6, 2000, counsel for DBPR filed a formal motion that the Board reconsider its vote to reinstate Petitioner's license, arguing that the Board lacked the legal authority to reinstate a license that had become null and void.

18. Subsequent to the Board's vote on January 13, 2000, Petitioner engaged in activities that require licensure as a Professional Surveyor and Mapper. Until May 2000, Petitioner sealed surveys using license number 0004297.

19. On May 18, 2000, at a duly noticed meeting in Key West, Florida, with Petitioner and Mr. Madson in attendance, the Board addressed DBPR's motion to reconsider. After debate, the Board voted to grant the motion to reconsider and thereafter voted to rescind its previous order reinstating Petitioner's license. A written Order Rescinding Reinstatement of License was formally entered on May 31, 2000. The basis for the vote was the Board's determination that it lacked the legal authority to reinstate Petitioner's license.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

21. Petitioner has the burden of proving his entitlement to the reinstatement of his license by a preponderance of the evidence. See, Section 120.57(1)(j), Florida Statutes.

22. Section 455.271, Florida Statutes, pertains to professional licenses issued by DBPR that have become inactive or delinquent, and pertinent to this proceeding, provides as follows:

    1. A licensee may practice a profession only if the licensee has an active status license. A licensee who practices a profession without an active status license is in violation of this section and s. 455.227, and the board, or the department when there is no board, may impose discipline on the licensee.

    2. Each board, or the department when there is no board, shall permit a licensee to choose, at the time of licensure renewal, an active or inactive status. . . .

       
       

       * * *

       
       

       1. A licensee shall apply with a complete application, as defined by rule of the board, or the department when there is no board, to renew an active or inactive status license before the license expires. Failure of a licensee to renew before the license expires shall cause the license to become delinquent in the license cycle following expiration.

       2. A delinquent status licensee must affirmatively apply with a complete application, as defined by rule of the board, or the department when there is no board, for active or inactive status during the licensure cycle in which a licensee becomes delinquent. Failure by a delinquent status licensee to become active or inactive before the expiration of the current licensure cycle shall render the license null without any further action by the board or the department. Any subsequent licensure shall be as a result of applying for and meeting all requirements imposed on an applicant for new licensure.

23. Section 455.273, Florida Statutes, provides, in pertinent part, as follows:

    1. At least 90 days before the end of a licensure cycle, the Department of Business and Professional Regulation shall:

       1. Forward a licensure renewal notification to an active or inactive licensee at the licensee's last known address of record with the department.

       2. Forward a notice of pending cancellation of licensure to a delinquent status licensee at the licensee's last known address of record with the department.

          
          

24. The records of DBPR establish that it complied with the foregoing requirements of Section 455.273, Florida Statutes.

25. Rule 21-6.009(2), Florida Administrative Code (February 1995), provides as follows:

    Each application for renewal shall be considered timely filed if the application has been postmarked by the post office prior to midnight on the date of expiration of the license or has been delivered by the close of business on the date of expiration of the license. . . . In order to be complete, the application must have all appropriate spaces filled, be signed by the licensee and include a money order or a sufficiently funded check in the correct amount. Any renewal which does not comply with the above conditions shall become delinquent.

    
    

26. Petitioner failed to properly renew his license following the 1993/1994 biennium, his license became delinquent on March 1, 1995, pursuant to Section 455.271(5), Florida Statutes, and it became null on March 1, 1997, pursuant to Section 455.271(6), Florida Statutes.

27. The Petitioner argues that the Board is equitably estopped to deny his entitlement to the reinstatement of his license. The doctrine of equitable estoppel is applied against a state agency only under rare and exceptional circumstances. North American Co. v. Green, 120 So. 2d 603 (Fla. 1959). To

    establish equitable estoppel, Petitioner would have to prove that a representation was made as to a material fact that is contrary to a later asserted position; that he relied on that representation; and that as a result, he changed his position to his detriment. Salz v. Department of Administration, Division of Retirement, 432 So. 2d 376, 378 (Fla. 3d DCA 1983). The doctrine of equitable estoppel is not applicable to the issue of whether Respondent has the legal authority to reinstate Petitioner's license because that question is a matter of law.

    A misstatement of law, as opposed to a misstatement of fact, cannot be the basis for the application of the doctrine of equitable estoppel. Florida Department of Revenue v. Anderson,

    403 So. 2d 400 (Fla. 1981). 2/

    
    

28. Pursuant to Section 455.271(6), Florida Statutes, the only way Petitioner can be re-licensed is too apply for and meet all requirements imposed on an applicant for new licensure. There is no authority for the Board to reinstate a null license, as the Board attempted to do at its meeting in January 2000.

29. In his Proposed Recommended Order, Petitioner asserts, for the first time in this proceeding, that he is entitled to licensure as a matter of law pursuant to the provisions of Section 472.041, Florida Statutes. That provision, a savings clause completely inapplicable to the facts of this case, was enacted in 1994 and repealed by Chapter 2000-332, Laws of Florida. Petitioner's argument based on this repealed, inapplicable savings clause is rejected as being without merit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application that his license be reinstated.

DONE AND ENTERED this 13th day of February, 2001, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2001.

ENDNOTES

1/ The following information would have been reflected on the back panel of the wallet portion of the license mailed to Petitioner when he renewed his license for the 1993/1994 biennium:

At least 60 days prior to the expiration date shown on this license, a notice of renewal will be sent to you to your last known address. If you have not received your notice by that date, forward the renewal fee, a copy of this license, and any other required data to the Department of Professional Regulation, Records Administration, 130 North Monroe Street, Tallahassee, Florida 32301.

2/ During the course of the proceedings on January 13, 2000, counsel for the Board referred to the Board's action as reactivating Petitioner's license. Since that reference, Petitioner has variously argued that his license should be reinstated or reactivated. For the purposes of this Recommended Order, it is not necessary to draw any distinction between reactivation of the license and the reinstatement of the license because such a distinction would not change the conclusions and recommendations contained herein.

3/ Whether Respondent is estopped from disciplining Petitioner for engaging in surveying between the Board's January 2000 vote and its May 2000 vote is not at issue in this proceeding.

COPIES FURNISHED:

Elena Moure-Domecq, Esquire Moure-Domecq, P.A.

9260 Sunset Drive, Suite 107

Miami, Florida 33173

Edward A. Tellechea, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Sherry Landrum, Executive Director Board of Professional Land Surveyors

and Mappers

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-004178

Orders for Case No: 00-004178