STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES,

Petitioner,

vs.

JOHN C. MINDER,

Respondent.

/

Case No. 14-4291

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case before Lynne A. Quimby-Pennock, an Administrative Law Judge of the Division of Administrative Hearings (Division), on December 4, 2014, in Sarasota, Florida.

APPEARANCES

For Petitioner: Patrick Francis Creehan, Esquire

Department of Agriculture and Consumer Services

2005 Apalachee Parkway

Tallahassee, Florida 32301

For Respondent: H. Richard Bisbee, Esquire

Law Office of H. Richard Bisbee, P.A. Suite 206

1882 Capital Circle, Northeast Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Respondent, John C. Minder, committed the violations alleged in the Amended Administrative Complaint issued by the

Department of Agriculture and Consumer Services (Petitioner) on November 17, 2014; and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

In December 2012, Petitioner issued an Administrative Complaint (AC)1/ against Respondent alleging violations of the Board of Professional Surveyors and Mappers’ (Board) practice act. On March 13, 2013, this AC was resolved via a “Final Order Approving Settlement Stipulation.” The terms and conditions were set forth in the Settlement Stipulation, which included a stay of a suspension pending the submission of surveys that were acceptable to the Board’s Probation Review Committee (Committee).2/ The Committee is composed of three members of the Board.

Respondent submitted a list from which six surveys were selected, and he provided the surveys. On November 6, 2013, the Board’s Committee met and deliberated Respondent’s survey submissions. The Committee voted “to deny the six surveys.” Respondent was told the process would start over and Respondent would be contacted for six additional surveys.

Respondent submitted a list from which the second set of six surveys were selected, and he provided the surveys. On

February 19, 2014, the Committee met and deliberated Respondent’s second set of survey submissions. The Committee voted “not to accept the surveys submitted for the second round” and to “lift

the stay on Mr. Minder until he takes and passes the Florida Jurisdiction.”

The “Order Lifting [Respondent’s] Stay of Suspension” was executed on March 14, but not rendered until March 17.

In April 2014, Respondent appealed the Board’s Order to the Second District Court of Appeal (Second DCA). The Second DCA relinquished jurisdiction3/ for a hearing to be held on the allegations that Respondent failed to satisfactorily comply with the Final Order.

On June 2, Respondent’s counsel advised Petitioner (in part):

Lastly, the basic point of Mr. Minder’s appeal as you know is his entitlement to a

120.60 formal hearing prior to the Board’s entry of its Order Lifting Stay to challenge the underlying decisions of the Probation Committee as adopted by the Board. I would anticipate the Appellate Court remanding the case eventually for that purpose and in the interest of judicial economy and litigation costs would appreciate your efforts discussing with your client whether the Board would be amenable to entering into a stipulation to remand the case pending appeal for that purpose.

On September 15, Petitioner submitted to the Division a transmittal letter that provided the following:

Enclosed please find the following documents relating to the above case:

1. March 13, 2014 Order Lifting Stay of Suspension of John C. Minder, professional surveyor and mapper.

   
   

2. A letter dated June 2, 2004 [sic] from Richard Brisbee [sic], Esq., counsel for John

C. Minder requesting a 120.60 formal hearing to challenge the underlying decisions of the Probation Committee as adopted by the Board of Professional Surveyors and Mappers.

Please assign an administrative law judge to hear this case.

The hearing was noticed to be held on November 5 and 6, 2014. Following a Joint Motion to Continue, the hearing was rescheduled for December 4 and 5, 2014.

On October 3, Respondent filed a “Motion to Dismiss; Alternatively, Motion for More Definite Statement,” setting forth Respondent’s position and seeking an order requiring Petitioner to prepare a detailed administrative complaint.

On November 17, a “Corrected” Amended Administrative Complaint (Complaint) was filed with the Division. The Complaint alleged Respondent violated section 472.035(1)(h), Florida Statutes, by:

violating a lawful order of the board by his unsuccessful completion of probation as imposed by the Final Order Approving Settlement Stipulation filed March 20, 2014 in the following ways; [sic]

1. by failing to produce required documentation under the Rules and under the Settlement Stipulation and/or;

   
   

2. by failing to complete the surveys in compliance with Minimum Technical Standards.

On November 25, 2014, Respondent filed a “Motion to Continue December 4, 2014 Hearing Date.” The motion was denied.

Respondent’s pre-hearing statement included another request for a continuance. At the start of the hearing, Respondent withdrew the request for a continuance, and the parties proceeded to present the case.

Petitioner presented the testimony of John Stanley Roberts, the executive director of the Board. Petitioner’s Exhibits 1, 3,4/ and 4, and Respondent's Exhibit 1 were admitted into evidence. Respondent did not present any witnesses.

At the conclusion of the hearing, the parties requested that the post-hearing submissions be filed within 15 days of the filing of the hearing transcript. On December 30, the one-volume Transcript of the final hearing was filed with the Division. By Notice of Filing Transcript entered January 6, 2015, the parties were informed that their proposed recommended orders (PROs) were to be filed on or before January 29. Both parties timely filed a PRO, and each has been considered in entering this Recommended Order.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2013 codification.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the licensing and regulation of professional mappers and surveyors pursuant to chapter 472, Florida Statutes.

2. At all times material, Respondent was a licensed professional surveyor and mapper in Florida, having been issued Florida license number LS 4071.

3. In December 2012, a three-count AC was issued to Respondent alleging violations of “former” sections 472.0351(1)(g), and (h), Florida Statutes (2012), through violating Florida Administrative Code Rules 5J-17.052(2)(a)8.d., and 5J-17.052(2)(c)1.a.5/

4. Respondent “freely and voluntarily” entered into a Settlement Stipulation with Petitioner that resolved the AC. That Settlement Stipulation contained the following provision at paragraph 11(e):

   Respondent shall provide the Board with a list of all signed and sealed surveys containing a minimum of six (6) surveys which were performed by Respondent within 120 days of the Final Order. The Board’s Probation Chair will randomly select (6) of Respondent’s signed and sealed surveys for review from the survey list submitted by Respondent. Within seven (7) calendar days6/ of being notified by the Board of the surveys which were selected for review, Respondent shall have post-marked and submitted to the Board Office signed and sealed surveys for the surveyed properties selected for review, along with copies of the relevant field

   
   

   notes, the relevant full size record plats, all measurement and computational records, and all other documents necessary for a full and complete review of the surveys, in accordance with Florida Administrative Code Rules 5J-17.016, 5J-17.083, and 5J-17.085.

   Respondent must attend the Probation Committee meeting at which the surveys are to be reviewed. Failure to comply with this provision may result in Respondent being referred to the Department for non-compliance with the final order of the Board, and the Board may lift the stay of suspension.

   
   

5. Respondent provided a list of his signed and sealed surveys for review. In accordance with the Board’s procedures, the Board chair randomly selected six surveys for the Committee to review. Mr. Roberts provided two surveys to each Committee member for their individual review.

6. Respondent admits he appeared before the November 6, 2013, Committee meeting. The excerpt transcript of the November 6 Committee meeting recorded a discussion between the Committee members and Respondent. It further recorded that the Committee voted to “deny the [Respondent’s] six surveys.”

7. The excerpt transcript of the November 7, 2013, Board meeting, aside from the cover page indicating that it involved Respondent (“IN RE: JOHN C. MINDER”), fails to specifically identify Respondent or the action that the Committee wished to be directed towards him.7/ Further, the transcript fails to reflect the actual vote taken by the Board, as the recording and transcript stopped before the vote was recorded.

   
   

8. Respondent provided a second list of all his signed and sealed surveys for review. The Board chair randomly selected six new surveys for the Committee to review. Mr. Roberts provided two surveys to each Committee member for their individual review. Respondent admits he appeared before the February 19, 2014, Committee meeting.8/

9. The excerpt transcript of the February 19, 2014, Committee meeting recorded another discussion between the Committee members and Respondent. It further recorded that the Committee voted not to accept Respondent’s “second round” of surveys, and to lift the stay on Respondent’s license suspension until he “takes and passes the Florida Jurisdiction.”

10. The excerpt transcript of the February 20 Board meeting reflects that the Committee reported to the Board:

    John Minder appeared with a second set of surveys. They were denied. He must take and pass the Florida jurisdiction portion of the State exam.9/

    
    

11. The Board’s Order Lifting Stay of Suspension, rendered on March 17, 2014, in pertinent part, provides the following:

    THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

    
    

    1. The report and recommendation by the Committee is hereby adopted.

       
       

    2. Respondent’s license is hereby SUSPENDED.

       
       

    3. If the Respondent files a written Petition for Reinstatement in conformity with the applicable administrative Rules

       
       

       (including but not limited to Rules 5J-17.083 and 5J-17.085, Fla. Admin. Code,) then the Board may consider the Petition and may reinstate the license.

       
       

       The Committee’s report only stated that Respondent “must take and pass the Florida jurisdiction portion of the State exam.” There is no Committee recommendation of lifting the stay of suspension or a suspension of Respondent’s license.

12. Mr. Roberts was the only person to testify at the hearing. Mr. Roberts is not and never has been a licensed surveyor or mapper. His discussion of the probation process was helpful; however, he did not provide any direct testimony supporting the Complaint. His hearsay testimony cannot support a finding of fact.

13. Although Mr. Roberts testified to what he saw Respondent provide and what the Committee members saw, his testimony cannot support the allegations that the surveys Respondent submitted were not in compliance with Minimum Technical Standards. There was no credible expert testimony provided to support the Petitioner’s allegations.

14. Further, when asked the following: “And at that [General Board] meeting was a decision made to enter an order lifting a stay of suspension upon Mr. Minder’s license?”

    Mr. Roberts responded: “To the best of my recollection, the Board decided and voted unanimously to lift the stay of

    
    

    suspension on Mr. Minder’s license.” The Board transcript does not substantiate that recollection.

15. Petitioner did not prove that Respondent’s surveys failed to meet minimum standards.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. § 120.57(1), Fla. Stat.

17. The Department of Agriculture and Consumer Services, Board of Professional Surveyors and Mappers, is the state agency charged with regulating the practice of surveying and mapping pursuant to section 20.14 and chapter 472.

18. This is a penal proceeding against Respondent’s license brought pursuant to section 472.0351, Florida Statutes. It is well-established that in penal disciplinary proceedings, the Petitioner has the burden to prove the alleged violations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d

    292, 294 (Fla. 1987). See In re Henson, 913 So. 2d 579, 590

    
    

    (Fla. 2005); see also Dep't of Banking & Fin. v. Osborne Stern &

    
    

    Co., 670 So. 2d 932, 935 (Fla. 1996).

    
    

19. The clear and convincing evidence standard requires

    
    

    that:

    
    

    the evidence must be found to be

    credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in

    
    

    confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

20. Rule 5J-17.085(2) provides in pertinent part:

    
    

    Upon receipt of the signed and sealed surveys and other documents by the Board, either a surveying and mapping consultant selected by the Board or a member of the Board shall conduct a review of the surveys supplied by the licensee and provide an evaluation report to the Board for review, with all costs associated with said review and report paid to the consultant or the Board by the licensee.

    
    

21. The Board failed to meet its burden of proof. Although the evidence establishes that Respondent entered a settlement stipulation with conditions, and a Board Final Order was entered, the evidence was not clear and convincing that Respondent’s submissions were below minimum technical standards.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Surveyors and Mappers issue a final order dismissing the Complaint.

DONE AND ENTERED this 11th day of February, 2015, in Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2015.

ENDNOTES

1/ This Administrative Complaint was issued in Department of Agriculture and Consumer Services, Case Number 1202-05065.

2/ The terms of the Settlement Stipulation also included:

Respondent would not violate the practice act; Respondent would pay a fine and the costs within 90 days; and his license was suspended, however, the suspension was stayed pending Respondent’s compliance with the terms of probation.

3/ The undersigned was not provided a copy of the Court’s Order; however, the parties agree that the Division has jurisdiction to hear this case.

4/ Exhibits 1 and 3 were admitted over objection.

5/ The initial AC is not the basis of this case, and no findings of fact or conclusions of law will be made regarding it.

6/ Respondent’s counsel raised a question about the seven days versus the five days allocated by Board rule; however, Respondent

was not charged with a failure to timely submit his surveys or the follow-up documentation. There is no prohibition for the parties to agree on a different schedule.

7/ The excerpt transcript of the November 6 and 7 Board meeting: PROBATION REVIEW COMMITTEE REPORT

BOARD OF PROFESSIONAL SURVEYORS AND MAPPERS

EXCERPTS FROM PROCEEDINGS PROBATION REVIEW COMMITTEE IN RE: JOHN C. MINDER

(PAGES 1 THROUGH 6)

DATE: NOVEMBER 6, 2013 and

NOVEMBER 7, 2013

TRANSCRIPT OF AUDIO RECORDING EMBASSY SUITES WEST PALM BEACH – CENTRAL

BANYAN ROOM 1601 BELEVEDERE ROAD

WEST PALM BEACH, FL 33406

AUDIO TRANSCRIBED BY: ANDREA KOMARIDIS COURT REPORTER PREMIER REPORTING

114 5TH AVENUE TALLAHASSEE, FLORIDA

(850) 894-0828

[Page 2 lists the persons attending the meeting; the transcription starts on page 3.]

[BOARD] CHAIRPERSON: Probation committee, Howard Ehmke.

MR. EHMKE: The probation committee met earlier today. On the docket we had a request for approval for delegating authority to the executive director regarding non- compliance of probationers.

It was approved by the committee.

We had one case of non-compliance, which we continued to stay.

We had one compliance check; no action taken.

We had two sets of survey reviews -- first- survey reviews. Both cases were denied. We had two sets of second-survey reviews, which were both approved.

MR. ROBERTS: If I’m not mistaken -- sorry, Mr. EHMKE: The one case of non-compliance. MR. EHMKE: We continued to stay.

MR. ROBERTS: No, we actually lifted the stay.

MR. EHMKE: We did?

MR. ROBERTS: Right? Lifted the stay -- UNIDENTIFIED FEMALE SPEAKER: Which one?

Who?

MR. ROBERTS: Lifted the stay of suspension. UNIDENTIFIED FEMALE SPEAKER: For who?

MR. ROBERTS: For McMillen. And --

UNIDENTIFIED FEMALE SPEAKER: Yeah, Mr. Krick

motioned to lift the stay and open a new case.

MR. ROBERTS: Opened a new case for failure to abide by complied order.

MR. EHMKE: Okay. I’m sorry.

MR. ROBERTS: Right. Right. Okay. I just wanted to make sure --

MR. EHMKE: I appreciate it. MR. ROBERTS: -- we’re clear.

MR. EHMKE: Recommend that the Board approve the actions of the probation committee.

CHAIRPERSON: Second?

MR. KRICK: I’ll second that. CHAIRPERSON: Seconded by Mr. Krick.

UNIDENTIFIED FEMALE SPEAKER: And approved? Howard motioned it?

CHAIRPERSON: Howard motioned it.

UNIDENTIFIED FEMALE SPEAKER: (Whispering.) Is that okay?

CHAIRPERSON: I think it’s okay. It’s part of that committee.

UNIDENTIFIED FEMALE SPEAKER: That’s why I was asking if it was okay.

CHAIRPERSON: It’s okay. Okay. We have a motion and a second. All in favor, signify by --

(End of recording.)

8/ Respondent took issue with the composition of this Committee, claiming that its composition was “substantially altered” in its make-up. State boards are made up of appointed volunteers who give of their time and expertise to support their chosen field or area of interest. No testimony or evidence was adduced to support a finding that there were any irregularities in the composition of the Committee.

9/ The excerpt transcript of the February 19 and 20 Board meeting:

GENERAL BUSINESS MEETING

BOARD OF PROFESSIONAL SURVEYORS AND MAPPERS EXCERPTS FROM PROCEEDINGS PROBATION COMMITTEE REPORT

IN RE: JOHN C. MINDER

(PAGES 1 THROUGH 5)

DATE: FEBRUARY 19, 2014 and

FEBRUARY 20, 2014

TRANSCRIPT OF AUDIO RECORDING MARRIOTT MIAMI DADELAND

9090 SOUTH DADELAND BOULEVARD MIAMI, FL 33156

AUDIO TRANSCRIBED BY: ANDREA KOMARIDIS COURT REPORTER PREMIER REPORTING

114 5TH AVENUE TALLAHASSEE, FLORIDA

(850) 894-0828

[Page 2 lists the persons attending the meeting; the transcription starts on page 3.]

[BOARD] CHAIRPERSON: Probation committee report.

MR. KRICK: The probation review committee met yesterday on the 19th.

MR. ROBERTS: For a very long time. (Laughter.)

MR. KRICK: David McMillen appeared, petitioned for reinstatement of his stay of suspension. That was approved.

John Minder appeared with a second set of surveys. They were denied. He must take and pass the Florida jurisdiction portion of the State exam.

* * *

That’s it.

MR. TALBOTT: I make a motion we accept the probation committee’s report.

MR. FUSCO: I second that.

CHAIRPERSON: We have a motion and a second. Any other discussion? All in favor, signify by saying aye.

UNANIMOUS SPEAKERS: Aye.

CHAIRPERSON: Opposed? Motion carries. (End of recording.)

COPIES FURNISHED:

H. Richard Bisbee, Esquire

Law Office of H. Richard Bisbee, P.A. Suite 206

1882 Capital Circle, Northeast Tallahassee, Florida 32308 (eServed)

Patrick Francis Creehan, Esquire Department of Agriculture and

Consumer Services 2005 Apalachee Parkway

Tallahassee, Florida 32301 (eServed)

Lorena Holley, General Counsel Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed)

Honorable Adam Putman Commissioner of Agriculture Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

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: 14-004291

Orders for Case No: 14-004291