STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-3108

)

BERTIN C. TASH, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause cafe on for formal hearing on December 14, 1988 in West Palm Beach, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: George W. Harrell, Esquire

Department of Professional Regulation

120 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Bertin C. Tash, pro se

5100 Spruce Avenue

West Palm Beach, Florida 32407-2846

This cause arises out of an Administrative Complaint initiated January 25, 1988 and filed with the Division of Administrative Hearings on June 28, 1988.

Formal hearing proceeded upon an Amended Administrative Complaint, pursuant to Order entered October 24, 1988.

ISSUE

Whether or not Respondent has violated Sections 472.033(1)(a), and (h), and 455.227(1)(b), Florida Statutes, and Rules 21HH-2.001(3) and 21HH-6.003, Florida Administrative Code, by failure to comply with a valid Final Order of the Board of Professional Land Surveyors.

PRELIMINARY STATEMENT

At formal hearing, Petitioner had admitted four exhibits and presented the oral testimony of Respondent. Respondent testified on his own behalf and presented the oral testimony of Bill Creach. Respondent had one exhibit admitted in evidence. Neither party filed post-hearing proposals within 10 days of the date Petitioner filed the transcript of proceedings with the Division of Administrative Hearings, but since the respective proposals were received only shortly after the prescribed period, each has been considered and is ruled upon

in the appendix to this recommended order, pursuant to Section 120.59(2), Florida Statutes.

FINDINGS OF FACT

1. Petitioner is the state agency charged, in conjunction with the Board of Professional Land Surveyors, with the responsibility to prosecute administrative complaints pursuant to Chapters 455 and 472, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. At all times material to the Amended Administrative Complaint, Respondent Bertin C. Tash was licensed as a professional land surveyor in the State of Florida, holding license number LS 0002292.

   
   

3. By Final Order entered December 31, 1985, the Board of Professional Land Surveyors issued a Final Order in case number 0049353 (previously DOAH Case No. 85-0285), a prior disciplinary action against Respondent.

   
   

4. Among other terms of that Final Order, Respondent was placed on probation for twenty-seven months and further was required during the course of that twenty-seven month probation to:

   
   

   ... submit 25 surveys representative of his land surveying practice which shall be accompanied by field notes and record plats to the board for its review. Additional information regarding the surveys may be requested. Five surveys shall be submitted within three months from the filing of this final order; thereafter, five surveys shall be submitted at six month intervals during the period of probation. Respondent shall attend the first available continuing education seminar in his area on the minimum technical standards within 12 months from the filing of this order or as soon after

   as possible. Evidence of Respondent's attendance and successful completion of the course shall be furnished to the board through the proctor or instructor of the continuing education course... (Emphasis supplied.)

   
   

   It is noted that although the "certificate of service" for the copy of the Final Order admitted in evidence as part of Petitioner's Exhibit 3 is unsigned, Respondent admitted receipt thereof, that no appeal was taken therefrom, and that he understood the terms of the Final Order.

   
   

5. Twenty-seven months from December 31, 1985 would fall on April 1, 1987. Twelve months from December 31, 1985 would fall on January 2, 1986.

   
   

6. Respondent initially complied with the Final Order by submitting two sets of five surveys, the second in December, 1986. However, some type of dispute arose between Respondent and the Board's monitor of Respondent's probation about whether the monitor could require corrections to be done by Respondent to those surveys already submitted and about whether or not Respondent could be required to submit his field notes for the surveys.

   Respondent seems to have resisted the clear language of the Final Order (see emphasized language in Finding of Fact No. 4, supra) upon a personal belief that these requirements were unconstitutional, invaded his privacy, or exposed him to ethical charges by his clients. There is nothing in the record, to support this ideation of Respondent, and eventually, Respondent altered his position.

   
   

7. Respondent did not submit any further surveys until November, 1988 after the instant case was already in progress, at which time he had modified some of his views with regard to field notes. He then attempted to comply with the Final Order by submitting corrected surveys. However, in error, he sent these surveys not to the Board, but to the attorney for the Department of Professional Regulation where they were retained. This submittal was considerably beyond the April 1, 1987 probationary period and whether considered corrections of the second five surveys or an additional five surveys would not constitute the twenty-five surveys required by the prior Final Order.

   
   

8. The Respondent failed to complete a seminar on minimum technical standards between the entry of the Final Order on December 31, 1985 and the date of formal hearing on December 14, 1988. Petitioner submitted proof that such courses were available in West Palm Beach, Respondent's hometown, on May 20, 1987, and in adjoining Broward County on May 21, 1988. Clearly, neither of these courses was available to Respondent during the probationary time frames set out in the Final Order and Findings of Fact Nos. 4 and 5 supra. Petitioner submitted no proof of the availability of other such courses during the appropriate time frames, but it appears undisputed that these were the only qualifying courses "in his area" and that the Board would have accepted Respondent's late completion of either course as his compliance with the continuing education requirement in the Final Order. The Board even went so far as to reserve space for Respondent at the May 21, 1988 course in Broward County. Respondent's testimony that he was too ill to attend the May 30, 1987 course is unrefuted. Respondent's testimony that he had, no private means of transportation to the May 21, 1988 course is also unrefuted but he did not show unavailability of public transportation. Moreover, Respondent testified that until the date of formal hearing, he had resisted, upon grounds of his personal ethical ideation, the concept of learning from, or submitting himself to critiques by, any local professionals who conducted continuing education seminars in land surveying.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause.

   
   

10. Respondent is charged with violations of Section 472.033(1)(a) and (h) Florida Statutes, which provide:

    
    

    1. The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:

       1. Violation of any provision of s. 472.031 or s. 455.227(1);

          * * *

          (h) Failing to perform any statutory

          or legal obligation placed upon a licensed land surveyor; violating any provisions

          of this chapter, a rule of the board or department, or a lawful order of the

          board or department previously entered in a disciplinary hearing; or failing to

          comply with a lawfully issued subpoena of the department.

          
          

11. Section 455.227(1)(b) Florida Statutes provides:

    
    

    1. The board shall have the power

       to revoke, suspend, or deny the renewal of the license, or to reprimand, censure, or otherwise discipline a licensee, if the board finds that:

       * * *

       (b) The licensee has intentionally violated any rule adopted by the board or departments. (Emphasis supplied.)

       
       

12. Petitioner has not proved a violation of Sections 472.033(1)(a) and 455.227(1)(b) Florida Statutes, in that a Final Order of the Board is not a rule.

    
    

13. Petitioner has proved that Respondent failed to live up to the terms of the probation imposed by the prior Final Order of the Board in two respects. First, Respondent did not timely submit the correct number of surveys or corrections, i.e., "additional information" legitimately required by the Board. Second, Respondent did not complete the courses on minimal professional standards, even when the time limit therefor was waived by the Board. Consequently, the Board has proved two violations of a single lawful order of the Board in violation of Section 472.003(1)(h) Florida Statutes.

    
    

14. Rule 21HH-9.002, Florida Administrative Code, provides, in pertinent part:

    
    

    In imposing discipline...the Board shall act...and shall impose a penalty within the range....set forth below.

    
    

    (8) Failure to perform a legal obligation...or violation of a lawful order of the Board...

    
    

    Penalty: Reprimand to denial or revocation of license depending upon severity of offense and harm to the consumer or public.

    
    

15. In consideration of Respondent's failure to comply with the terms of his probation, but in consideration that the infrequency of local continuing education courses and Respondent's illness were at least, in part, contributing factors to one aspect of his non-compliance, a sufficient penalty for the two violations proved is a three-month suspension of Respondent's license, subject to an extension of such suspension up until a maximum of one year or until Respondent completes the required continuing education course, whichever comes first, and three years probation thereafter during which time Respondent shall be required to submit an appropriate number of surveys for review by the Board.

    
    

16. In making the foregoing determination, the undersigned has considered that although no direct harm has yet resulted, to the public from Respondent's

actions, the failure or refusal of licensees to comply with lawful orders of disciplinary agencies undermines the State's scheme of insuring the public safety through professional discipline.

Upon the foregoing findings of fact and conclusions of law, it is, recommended:

RECOMMENDATION

That the Board of Professional Land Surveyors enter a Final Order finding Respondent guilty of two counts of violating Section 472.003(1)(h) Florida Statutes, and imposing a three-month suspension of Respondent's license, subject to an extension of such suspension to a maximum of one year or until Respondent completes the continuing education course required by the prior Final Order, whichever comes first, and imposing thereafter three years' probation to follow immediately upon the lifting of the suspension, during which three years' probation Respondent shall be required to submit an appropriate number of surveys to be determined by the Board for review by the Board.

DONE and ENTERED this 13th day of February, 1989, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3108

The following constitute specific rulings upon the parties' respective Proposed Findings of Fact (PFOF) pursuant to Section 120.59(2), Florida Statutes.

Petitioner's PFOF:

1-5 are all accepted.

Respondent's PFOF:

PFOF 1 discusses the nature of several exhibits and objections ruled upon in the course of formal hearing, does not constitute a relevant or material proposed fact and is not dispositive of any issue at bar. The same subjects are addressed within the RO at FOF 3-4 and 8 to the degree they impinge on this proceeding.

PFOF 2 is rejected in part and accepted in part in FOF 8 to the degree it comports with the greater weight of the credible record evidence as a whole.

PFOF 3 is accepted in part in FOF 6. The remainder of the proposal is rejected as irrelevant, immaterial, and not comporting with the greater weight of the credible record evidence as a whole.

PFOF 4,5,7 and 8 are rejected as mere argument of position or legal argument.

PFOF 6 is accepted in part in FOF 7. The remainder of the proposal is rejected as immaterial or mere argument of position or legal argument.

COPIES FURNISHED:

George W. Harrell, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bertin C. Tash 5100 Spruce Avenue

West Palm Beach, Florida 33407-2846

Allen Smith, Jr.

Executive Director

Board of Professional Land Surveyors

130 North Monroe Street Tallahassee, Florida 32399-0750

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32299-0750

=================================================================

AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF PROFESSIONAL LAND SURVEYORS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE NO. 0085847

DOAH CASE NO. 88-3108

BERTIN C. TASH,

Respondent.

/

FINAL ORDER

Respondent, BERTIN C. TASH, is a licensed land surveyor in Florida having been issued license number LS 0002292. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the licensee.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to 120.57(1), F.S.; it is attached to and made a part of this Order.

The Board of Professional Land Surveyors met on March 9, 1989, in Tallahassee, Florida, to take final agency action. The Petitioner was represented by George W. Harrell, Esquire. The Respondent was neither present nor represented. The board has reviewed the entire record in the case.

The board adopts the findings of fact and conclusions of law, of the recommended order.

PENALTY

Based upon a review of the complete record in this case, the Board hereby adopts in substance the recommended penalty of the hearing officer but modifies it in two aspects:

1. The Board imposes a fine of $2,000.00 to be paid within 30 days of the filing of this Order.

   
   

2. The Board provides that the three year probation period following the suspension shall take the form of a three year suspension which shall be stayed to allow a three year period of probation, so long as the licensees complies with the terms of probation. The justification for the Board's modification of the hearing officer's order are due to the serious deficiencies within the licensee's surveys contained within the record before the Board.

Wherefore, it is hereby ORDERED that: Respondent shall pay an $2,000 administrative fine within 30 days from the filing of this final order, and shall be suspended for three months, effective the filing of this order, and until the Board meeting immediately following the Executive Director's receipt of verification of the licensee having completed the Minimum Technical Standards course. Following this initial suspension, Respondent's license shall be suspended for a period of three years with such suspension to be stayed to allow for a three year period of probation during which time the following conditions shall apply: A Board consultant shall randomly select six of Respondent's surveys every three months. Each set of surveys must be dated at least 45 days after completion of the previous set of surveys. Each set of surveys shall include field notes and full size record plats. Each set of six surveys shall be submitted to the Board for its review. Any errors and deficiencies noted on the surveys shall be corrected by the Respondent within 45 days from his receipt of notice of the errors and deficiencies. The substance of the Board's review of the survey shall be to see whether Respondent's survey substantially comply with the Minimum Technical Standards. The consultant's fee for selection of surveys will be paid by Respondent. Failure of Respondent to strictly comply with any of the terms of probation may result in a lifting of the stay and imposition of the suspension at the Board's discretion. If the suspension takes effect, reinstatement shall be conditioned upon a three month period of

probation, during which time, Respondent will be required to submit the first six surveys he performs to the Board for its review.

Respondent may appeal this order within 30 days of its filing pursuant to Section 120.68, Florida Statutes and Florida Rule of Appellate Procedure 9.110(b) and (c).

DONE AND ORDERED this 30th day of March 1989.

BOARD OF PROFESSIONAL LAND SURVEYORS

ALLEN R. SMITH EXECUTIVE DIRECTOR

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was furnished by hand to George W. Harrell, Esquire, 130 North Monroe Street, Tallahassee, Florida 32301 by Certified Mail to BERTIN C. TASH, 5100 Spruce Avenue, W. Palm Beach, Florida 33407-2846, and by U.S. Mail to Ella Jane P. Davis, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 this 5th day of April, 1989.

Docket for Case No: 88-003108

Orders for Case No: 88-003108