STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUIS ANTHONY GUERRA, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2822

) STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD OF ) LAND SURVEYORS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on March 16, 1983, in the Richard P. Daniel Building, 111 Coastline Drive East, Jacksonville, Florida. Respondent, in the person of counsel, has offered a proposed recommended order. This proposal has been reviewed prior to the entry of the Recommended Order. To the extent that the proposal is consistent with this Recommended Order, it has been utilized. To the extent that the proposal is inconsistent, it is rejected.

APPEARANCES

For Petitioner: Louis A. Guerra, Pro Se

407 South 17th Street Fernandina Beach, Florida 32034

For Respondent: Ms. Susan Tully

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

ISSUE

The matters in dispute in this cause concern the attempts by Petitioner to achieve licensure in the State of Florida as a registered land surveyor, pursuant to Chapter 472, Florida Statutes, and through Rule 21HH-3.01, Florida Administrative Code. In particular, Respondent asserts that Petitioner has not met the necessary prerequisites in Section 472.013, Florida Statutes, to allow him to stand the licensing examination. Moreover, Respondent has not allowed Petitioner to gain licensure by endorsement as defined in Subsection 472.015 (3)

, Florida Statutes. Petitioner contends that he is entitled to licensure by endorsement or in the alternative, to stand the examination, leading to his licensure by testing.

WITNESSES AND EXHIBITS

Petitioner testified in this cause and offered two exhibits which were received.

Respondent presented a composite exhibit which is constituted of file materials related to the Petitioner's application for licensure and responses to the application request.

FINDINGS OF FACT

1. Petitioner is a retiree from the United States Army, having served 22 years, commencing in 1955. During his service, he obtained military occupational specialties related to the field of surveying in the artillery branch. This experience included occupational training given to Petitioner and examinations of his skills following that training; practical surveying work, and instructional work by Petitioner performed for the benefit of other trainees. This work experience included surveying activities in Florida while in the military. Those surveying duties were military assignments. Material related to Petitioner's training and job performance is generally set forth in Respondent's Exhibit No. 1. Petitioner's Exhibits Nos. 1 and 2 are further statements related to the Petitioner's military occupational specialties.

   
   

2. Petitioner has made application to be licensed as a land surveyor in Florida in keeping with the provisions of Chapter 472, Florida Statutes. Through this process, it is Petitioner's desire to be accepted for licensure through the endorsement process or be given the opportunity to sit for the examination. Respondent is unwilling to accent Petitioner as a candidate for licensure by endorsement. In this connection, he did not establish his successful completion of an examination identified in Subsection 472.015(3)(a), Florida Statutes, or that he holds a valid license from another jurisdiction within the meaning of Subsection 472.015(3)(b) , Florida Statutes.

   
   

3. After reviewing Petitioner's application, Respondent through correspondence dated September 10, 1982, denied Petitioner's reguest for licensure by examination premised upon the fact that Petitioner's land surveying experience was not verified by a registered land surveyor who had employed or supervised Petitioner's work. In addition, the letter of denial of licensure indicated that the applicant's file was not complete in that it failed to account for work experience following Petitioner's retirement from the armed services in 1976. (In the course of the hearing, it was established that Petitioner has not practiced land surveying following his retirement.)

   
   

4. Notwithstanding his considerable experience, Petitioner has failed to submit by application and/or in the course of the final hearing, documentation which would verify that Petitioner has gained his experience in the field of surveying as a sub- ordinate to a land surveyor as defined in Subsection 472.005(3), Florida Statutes. His documentation did not identify that Petitioner's supervisors or commanders were land surveyors as previously defined and Petitioner did not establish in the hearing that his superiors were land surveyors, as defined. As a consequence, Petitioner failed to provide references from land surveyors setting forth the quality and character of his duties and responsibilities while under the land surveyor's supervision.

   
   

5. After receiving the letter of denial of the application, Petitioner made a timely request for a formal Subsection 120.57(1), Florida Statutes, hearing. This matter was transmitted to the Division of Administrative Hearings

   and received by that Division on October 18, 1982. An initial hearing date was established for December 8, 1982, and was continued to allow for the negotiations between the parties. The case was subsequently reset for final hearing on March 16, 1983, the date the final hearing was conducted.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. See Section 120.57, Florida Statutes.

   
   

7. Petitioner seeks licensure as a land surveyor in keeping with the terms and conditions set forth in Chapter 472, Florida Statutes, and has the burden of affirmatively demonstrating his entitlement to that licensure. To receive that license, Petitioner must either comply with Subsection 472.015(2) or 472.015(3), 2/ Florida Statutes.

   
   

8. The alternative for licensure set forth in Subsection 472.015(2), Florida Statutes, requires compliance with the requirements of Section 472.013, Florida Statutes. This latter provision deals with licensures through the examination process and establishes prerequisites which must be met prior to standing the examination for licensure. In particular, those requirements are announced in Subsection 472.013(2), Florida Statutes.

   
   

9. Based upon the facts in this case, the only alternative available to Petitioner in establishing prerequisites for sitting for the license examination, are those announced in Subsection 472.013(2)(d) , Florida Statutes. 3/ Petitioner's application and information imparted in the course of the final hearing do not establish a specific experience record of eight or more years as a subordinate to a land surveyor. Petitioner did not prove the status of his supervisors or commanders related to their credentials as land surveyors within the definitional statement set forth in Subsection 472.005(3), Florida Statutes. Therefore, he was unable through his testimony to establish that his experience record included the eight or more years as subordinate to a land surveyor, with six years of that time related to active practice in which Petitioner was responsible for the surveying activities. Moreover, Petitioner has failed to establish compliance with Rule 21HH-3.01(1)(d) , Florida Administrative Code, which sets forth prerequisites for entry into the land surveying examination, which are similar to Subsection 472,.013(2)(d) , Florida Statutes. Finally, Petitioner has failed through the application process and through the evidence adduced at hearing, to show compliance with requirements for standing the licensing examination which are set out in Rule 21HH-3.01(3), Florida Administrative Code, which in its relevant portion provides:

   
   

   (3) In order to verify an applicant's experience record, the Board will require evidence as to employment from employers or supervisors who are registered land surveyors. such evidence should be in

   the form of references and shall set forth the quality and character of the appli- cants' duties and responsibilities.

   
   

   Evidence of land surveying work must include both field and office experience indicating that the applicant was in responsible charge of such work.

   There are references in his application and testimony at hearing concerning the quality and character of Petitioner's duties and responsibilities, generally stated. This information is not comment made by employers or supervisors who are registered land surveyors. Consequently, Petitioner has failed to comply with Rule 21HH-3.01(3), Florida Administrative Code, a necessary prerequisite to being afforded the opportunity to sit for the license examination.

   
   

10. Petitioner may not qualify for licensure based upon the provisions set forth in Subsection 472.015(3)(a) , Florida Statutes. Petitioner has not shown that he has passed a national, regional, state, or territorial licensing examination which is substantially equivalent to the examination pursuant to Section 472.013, Florida Statutes, nor has he satisfied the experience requirement set forth in Section 472.013 Florida Statutes.

    
    

11. Petitioner does not meet the requirement for licensure by endorsement set forth in Subsection 472.015(3)(d) , Florida Statutes. He has not been shown to be the holder of a land surveying license issued by another state or territory of the United States whose license requirements, by criteria, are substantially identical to those of the State of Florida, at the time the license was issued.

    
    

12. By way of argument, Petitioner appears to suggest that he may practice land surveying in Florida without complying with those provisions in Chapter 472, Florida Statutes, based upon the language of Subsection 472.003(1), Florida Statutes, which states:

    
    

    Sections 472.001-472.039 do not apply to:

    Any land surveyor working as a salaried employee of the United States Government when engaged in work solely for the United States Government.

    
    

13. This provision exempts employees of the United States Government who are practicing land surveying while employees of those governmental bodies, to include individuals who are in the active military service. It is not intended to grant a lifetime exemption, encompassing the retirement years of a former serviceman. Service retirees, such as Petitioner, must gain licensure pursuant to the terms and conditions set forth in Chanter 472, Florida Statutes, and its attendant rules, before practicing land surveying in Florida in their civilian capacity.

Based upon a full consideration of the facts and conclusions of law, it is RECOMMENDED:

That the Petitioner's application to sit for the land surveyor's examination in Florida and to be granted a land surveyor's license in Florida be DENIED.

DONE and ENTERED this 19th day of April, 1983, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1983.

ENDNOTES

1/ On April 6, 1983, George Crady, on behalf of Petitioner, spoke with the secretary to the undersigned and indicated that he felt the proposed recommended order offered by counsel for Respondent contained the following errors: 1. At Page 2, Paragraph 2, Petitioner had served 22 years in the Army as proposed to the 15 years reported. 2. At Page 2 of the proposed order, Paragraph 3, the indication that petitioner had not practiced under a registered land surveyor was proposed based upon the perception that Petitioner testified that he was uncertain whether he had practiced under a registered land surveyor.

2/ Subsection 472.015(2) The board shall certify for licensure any applicant who satisfies the requirements of s.472.013 and who has passed the licensing examination. The board may refuse to certify any applicant who has violated any of the provisions of s. 472.031.

Subsection 472.015(3) The board shall certify as qualified for a license by endorsement an applicant who:

1. Qualifies to take the examination as set forth in s. 472.013, who has passed a national, regional, state or territorial licensing examination which is substantially equivalent to the examination required by s. 472.013 and who has satisfied the experience requirements set forth in s. 472.013; or

2. Holds a valid license to practice land surveying issued by another state or territory of the United States if the criteria for issuance of such license were substantially identical to the licensure criteria which existed in Florida at the time the license was issued.

3/ Subsection 472.013(2)(d) Has successfully completed a specific experience record of 8 or more years as a subordinate to a land surveyor, 6 years of which shall be in the active practice of land surveying of a nature indicating that the applicant was in responsible charge of the accuracy and correctness of the land surveying work performed.

COPIES FURNISHED:

Ms. Susan Tully Assistant Attorney

Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Mr. Fred Roche General Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Louis A. Guerra

407 South 17th Street Fernandina Beach, Florida 3203

Mr. Allen R. Smith, Jr. Executive Director Board of Land Surveyors

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002822

Orders for Case No: 82-002822