STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF LAND )

SURVEYORS, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0640

)

DENNIS HEASLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Second Notice of Hearing furnished to the parties on August 30, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Tallahassee, Florida, on December 11, 1984. The issue for consideration was whether Respondent's license as a land surveyor in the State of Florida should be disciplined because of misconduct alleged in the Administrative Complaint.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: E. C. Deeno Kitchen, Esquire

Melissa Fletcher Allaman, Esquire Post Office Drawer 1170 Tallahassee, Florida 32302

BACKGROUND INFORMATION

The Secretary of Petitioner, Department of Professional Regulation, on January 20, 1984, signed an Administrative Complaint in this case alleging that the Respondent, Dennis Heasley, signed false per diem statements relating to a contract with the State of Florida knowing or have reason to know that they were false and, thereby, is guilty of a violation of Chapters 455 and 472, Florida Statutes, and Rule 21HH-2.01(5), Florida Administrative Code. Respondent, through his counsel, executed an Election of Rights form on February 7, 1984, in which he disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing.

At the hearing, the Petitioner presented the testimony of Robert L. Cartwright, an investigator with the State of Florida, Department of Transportation and introduced Petitioner's Exhibits 1 through 4. Respondent testified on his own behalf but did not introduce any documentary evidence.

The parties have submitted post-hearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. At all times pertinent to the allegations involved in this administrative hearing, the Respondent, Dennis Heasley, was a licensed land surveyor having been issued license number LS 3466 by the State of Florida.

   
   

2. In January 1981 Respondent was an employee of James Bushouse and Associates, a land surveying firm. On January 31, 1981, MidSouth Engineering (MidSouth), a licensed land surveying company, entered into a contract with Figg and Muller Engineers, Inc., and the State of Florida, Department of Transportation, to provide engineering and land surveying services for the new Sunshine Skyway Bridge project.

   
   

3. On June 10, 1981, MidSouth entered into a contract with Bushouse for Respondent, Heasley, and other Bushouse employees to perform some of the land survey services called for in the contract MidSouth had with the Department of Transportation.

   
   

4. Thereafter, MidSouth entered into an agreement with Respondent Heasley and one Jorge R. Saniz providing that, for a fee of $200,000.00 Heasley and Sainz would provide land surveying and consulting services to MidSouth for its work under its state contract.

   
   

5. On or about June 26, 1981, Heasley and Sainz began their work under the agreement with MidSouth, and the work called for by the agreement was satisfactorily completed by July 31, 1981. Thereafter, Heasley billed MidSouth for the unpaid remainder of the contract price and was paid.

   
   

6. The contract between MidSouth and the State of Florida provided for payment by the State based on crew day rates wherein the State would pay so much money per crew day expended. The work in issue here was to take no more than 85 crew days with an upper limit on payment to be approximately $300,000.00.

   
   

7. Respondent actually completed the work in 34 days. His speedy completion of the job resulted in MidSouth receiving less under its contract than anticipated. Shortly after completion, he became an employee of MidSouth. In the course of his continuing employment, he worked on some other aspects of the bridge project that were awarded to MidSouth.

   
   

8. Respondent's lump-sum contract with MidSouth called for payment to him of $200,000.00. Out of that sum he was supposed to pay all his and Sainz' job expenses which included the salary, housing, and feeding of the employees he hired to perform the actual surveying work. His understanding with MidSouth called for him to utilize approximately 12 to 16 crew members. During the time the work was being performed, Respondent and Mr. Sainz rented a house near the work-site in which crew members were provided a place to live. Food paid for by Respondent Sainz was provided as were laundry facilities. The sums paid for these items as well as the transportation of the workers and the worker's salaries were to come from the $200,000.00 fee paid by MidSouth. Payments were made on the basis of periodic draws. Either Heasley or Sainz would contact MidSouth and state that some money was required for expenses and a sum was

   furnished. As this sum was expended Respondent would ask for more. He indicates that the relationship was like a game in that he asked for as much as he thought he could get and MidSouth would pay as little as it thought it could get away with. In any event, no actual per diem monies were paid by Respondent to the employees who were working on the survey crew.

   
   

9. Respondent admits that during the 34 days this arrangement was in effect, he kept very few records and receipts. He relied on MidSouth to keep all the expense records and whatever receipts he received for money spent, he sent in to MidSouth which made up the payroll for Heasley and Sainz' crew members from the times he called in.

   
   

10. Several months after the subcontract between Heasley, Sainz, and MidSouth was completed, Heasley was called by Tom Heinly, Executive Vice- President of MidSouth and his immediate supervisor, with a request that he, Heasley, prepare, sign and submit a list of per diem expenses for the crew which worked on the contract referenced above. In the course of the conversation, Heinly asked that it be prepared a certain way. In response, Respondent told Heinly that he could not do that because he had not paid the money as per diem payments but had provided payment in kind in the form of food, lodging, and laundry. Heinly advised Respondent to think about it and later called back again asking that Heasley prepare and sign a statement indicating per diem money paid. Heinly argued that MidSouth was entitled to the money and asked that Heasley do this as a favor. Again, Heasley refused.

    
    

11. The third time Heinly called Heasley, he indicated that the list would be strictly a memorandum between Heasley and MidSouth to account for some of the money advanced by MidSouth and that the list had nothing to do with the State. Heinly assured Heasley that the improper, inaccurate list would not go to the State since this was one of Heasley's concerns. Heinly indicated that he had talked with representatives of the State and had been assured that it was legitimate to file an invoice such as this. Heasley was led to believe that the State would not reimburse MidSouth for advances made for in-kind payments but would reimburse for actual per diem expenses. Ultimately, since Heasley was convinced by Heinly that MidSouth was entitled to be reimbursed for these monies and since, to the best of his recollection, he, Heasley, had paid out in in-kind expense a sum similar to that claimed on the per diem list, it would be all right to so certify. Therefore, he agreed to sign the list after the third request.

    
    

12. The list which Heasley signed was prepared by MidSouth personnel, not Heasley, and was brought to Heasley by Mr. Duffer, MidSouth's chief accountant. Respondent does not recall going over the list at the time he signed it and verified neither the names nor the amounts set out thereon. When he checked it over much later, he found that some of the names on the list should not have been there.

    
    

13. Respondent admits signing the document and admits that the document as signed was false. When investigators from the State Attorney's Office initially talked with Mr. Heasley about this incident he was less than forthright. Though they had advised him they were investigating the relationship between MidSouth and the Department of Transportation, the tenor of their questions indicated to him that they were investigating him and his answers were evasive and, in fact, erroneous. However, when he subsequently found out the nature of the investigation, he attempted to get word to the investigators that he would like to continue the discussion. He was unable to do so, however, and was not interviewed by these officials again.

14. He was, however, subsequently interviewed by Mr. Cartwright who, in mid to late 1981, was conducting an investigation into the MidSouth, Heasley and Sainz relationship with the Skyway Bridge project. An engineer with the State had expressed some concern regarding invoices submitted by MidSouth and the preliminary inquiry showed some cause for concern. As a result, a full investigation was begun which revealed that MidSouth had little if any documentation to cover invoices submitted to the State. It also showed that the company's accounting procedures and internal control were almost nonexistent.

    
    

15. As a part of the investigation Cartwright interviewed Heasley who admitted that he had signed the documents referred to above regarding per diem payments. Heasley also admitted that in some cases the payees did not receive the money claimed but in his opinion, the bottom line balanced out and MidSouth was entitled to the total sum.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. In Count One of the Administrative Complaint, Petitioner alleges that the Respondent violated Section 472.033(1)(g), Florida Statutes, by being guilty of fraud, deceit, negligence, incompetence, and misconduct in the practice of land surveying. This allegation is overbroad in that it is a recitation of all possible violations under this particular statutory provision. There is no evidence at all that Respondent was guilty of negligence or incompetence. The evidence clearly shows, however, that Respondent signed a document in the form of a list of people and amounts purportedly paid by him for per diem payments in the furtherance of his performance of a land surveying contract as a part of a project in which his prime contractor was involved with the State of Florida. This list, which was accomplished as a part of his performance as a land surveyor, although the document itself did not per se pertain to the survey, was false and the Respondent knew it to be false. As such it constitutes deceit and misconduct.

    
    

18. The issue of fraud is not so clear, however, in that Respondent knew the individual to whom the list was given was aware of its falsity having prepared it. In addition, Respondent had been advised that this document would go no further and felt that MidSouth had a legitimate claim to a similar sum. Nonetheless, Respondent is in technical violation of this statutory provision.

    
    

19. In Count Two of the Administrative Complain, Petitioner contends that the same misconduct as outlined above also constitutes a violation of Rule 21HH- 2.01(5), Florida Administrative Code, which states in part:

    
    

    A registered land surveyor shall not commit misconduct in the practice of land surveying.

    
    

    Registered land surveyors shall be guided in all their professional relations by the highest standards of integrity and shall act in professional matters for each client or employer as faithful agents or trustees.

    
    

    Misconduct in the practice of land surveying

    . . . shall include but not be limited to, .

    . .

    
    

    (b) being truthful, deceptive or misleading in any professional report, statement, or testimony whether or not under oath. . . .

    
    

20. If it is concluded that Respondent violated this rule, then he would also be in violation of Section 455.227(1)(a) and (b), which states that the Board of Land Surveyors shall have the power to discipline a licensee if it finds:

    
    

    1. that the licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession; and

       
       

    2. the licensee has intentionally violated

       any rule adopted by the board or the Department.

       
       

21. Here, again, it is clear that Respondent Heasley was guilty of at least signing an untrue representation in the practice of his profession which constitutes a violation of both the rule and the statute. It also constitutes, therefore, a violation of Section 472.033(1)(a) and (h) which define acts constituting grounds for taking disciplinary action as:

    
    

    1. violation of any provision of Section

       472.031 or Section 455.227(1); and

       
       

       (h) violation of Chapter 455.

       
       

22. In Count Three of the Administrative Complaint, utilizing the same factual situation, Petitioner alleges that Respondent Heasley violated Section 472.033(1)(e), Florida Statutes, by making or filing a report which he knew to be false. The evidence is clear again, and it has been so found, that Respondent signed the false statement knowing that it was, in fact, false.

    
    

23. Respondent made much of the fact that though he signed a document which he knew to be false, he did so at the request of the other party after being assured that state representatives had suggested that the document be prepared this way and that the document would not be forwarded to the State, and only after having been satisfied that MidSouth, the recipient, was entitled to reimbursement for a sum equivalent to or approximating the amount stated on the false document. Respondent also made much of the fact that he was not enriched thereby and stood to gain nothing from signing the document other than good will and the potential for future employment. Counsel also made significant note of the fact that Respondent was acquitted in a criminal trial of any wrongdoing in this matter. That this was, in fact, the case is to Respondent's credit, but has no effect on a disciplinary action in this forum as the test of responsibility is different. Under the statute in question here and the rule promulgated thereunder, a criminal intent is not required to support disciplinary action. All that is required, and what has been shown here, is that Respondent acted in an untrue, false, or deceitful manner in the practice of his profession and knew he was doing so. Neither his motive nor the lack of reward or personal enrichment plays a part except as to the quantum of discipline to be imposed.

24. In that regard it is clear that Respondent performed the land surveying services for which he was retained in a satisfactory and competent manner. His subsequent misconduct in signing a false reimbursement statement dealt not with the professional but with the financial aspect of the practice, and while serious, is not so aggravated as to justify revocation or suspension of his license. Action must be taken to assure that Respondent recognizes his responsibility to conform to the highest standards of his profession, both technical and otherwise. This end can readily be served by a less severe disciplinary action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent, Dennis Heasley's license as a land surveyor in the State of Florida, be placed on probation for a period of two years, under such terms and conditions as shall be established by the Board of Land Surveyors, and that he be reprimanded and pay an administrative fine of

$1,000.00.

DONE AND ENTERED this 16th day of January 1985 in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of January 1985.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

E. C. Deeno Kitchen, Esquire Melissa Fletcher Allaman Post Office Drawer 1170 Tallahassee, Florida 32302

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Allen R. Smith, Jr.

Executive Director

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-000640

Orders for Case No: 84-000640