STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 95-1271

) 95-1272

JOHN D. HOLT, P.L.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in this case was held on July 20, 1995, by video conference between West Palm Beach, Florida, and Tallahassee, Florida, before Carolyn S. Holifield, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Miriam S. Wilkinson, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: John D. Holt, Pro Se

925 Azure Avenue

West Palm Beach, Florida 33414 STATEMENT OF THE ISSUES

Whether Respondent failed to comply with valid orders of the Board of Professional Land Surveyors and, if so, whether Respondent's license as a professional land surveyor should be disciplined.

PRELIMINARY STATEMENT

On October 6, 1994, Petitioner, Department of Professional Regulation, Board of Professional Land Surveyors (Board), filed two separate Administrative Complaints against the Respondent, John D. Holt, P.L.S., alleging violations of Section 472.033(1), Florida Statutes. Respondent challenged the allegations and requested formal hearings in both matters. On March 14, 1995, Petitioner forwarded the files in both cases to the Division of Administrative Hearings for the appointment of a hearing officer. The two separately docketed cases were consolidated and set for hearing.

The first Administrative Complaint, DPR No. 94-05710, alleged that Respondent violated conditions of probation imposed by the Final Order entered

in DPR Case No. 94-59729, in that he failed to submit the specified number of surveys to the Board at the designated intervals and failed to complete a seminar on the Minimum Technical Standards. The second Administrative Complaint alleged that Respondent violated conditions of probation imposed by Final Order of the Board issued in DPR Case Nos. 106764 and 107454. Specifically, Respondent allegedly failed to do the following: (1) complete a Minimum Technical Standards course, (2) complete a study guide, (3) submit a specified number of surveys to the Board, and (4) pay an administrative fine of $2500.00.

At the hearing, Petitioner presented the testimony of Dr. Angel Gonzalez, Executive Director and Official Records Custodian, of the Board. Petitioner offered and had admitted into evidence three exhibits. Respondent testified on his own behalf and offered no exhibits into evidence.

At Petitioner's request, the Hearing Officer took official notice of the statutes and rules governing the practice of land surveying in Florida which were in effect at the time material to the Administrative Complaints.

A transcript of the proceedings was filed on August 11, 1995. The Petitioner filed Proposed Findings of Facts more than ten (10) days after the transcript was filed. Respondent filed no Proposed Findings of Fact.

Petitioner's Findings of Fact have been treated in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon my review of the entire record, including the transcript of the proceedings and documentary evidence, I make the relevant findings of fact.

1. At all times material to the Administrative Complaint filed herein, Respondent, John D. Holt, was licensed as a Professional Land Surveyor in the State of Florida and held License No. 0002665.

   
   

2. On July 28, 1986, the Board of Professional Land Surveyors entered a Final Order in Case No. 0059729 (DOAH Case No. 86-4449), a prior disciplinary action against Respondent. The Final Order in DPR Case No. 0059729, adopted and incorporated a stipulation executed by the Department of Professional Regulation and John D. Holt on April 18, 1986. A copy of the Final Order was mailed to Respondent.

   
   

3. The Final Order in DPR Case No. 0059729 placed Respondent on probation for twenty-seven months. During the course of the twenty-seven month probation, the Final Order required Respondent to pay an administrative fine of $750.00. This fine was to be paid within thirty days from the date the Final Order was filed. Also, the Final Order required Respondent to complete the first available seminar on the Minimum Technical Standards held within his area and to submit twenty-five (25) surveys accompanied by field notes at designated intervals.

   
   

4. With regard to the submission of surveys, the relevant part of the stipulation provides that the Respondent shall

   
   

   ...submit to the Board at the end of three (3) months of probation, and again, at the end of nine (9) months, 15, 21, and 27 months of probation, five (5) land survey projects each, accompanied by field notes. As regards these 25

   land surveys and field notes, it is Respondent's responsibility to ensure that such reports are submitted to the Executive Director of the Board in compliance with this paragraph in a timely manner.

   
   

5. Respondent paid the $750.00 administrative fine as required by the Final Order. However, Respondent failed to complete the first available seminar on Minimum Technical Standards as required by the Final Order. In fact, there was no evidence that Respondent completed any seminar on the Minimum Technical Standards prior to the end of his twenty-seven month probationary period.

   
   

6. Respondent failed to submit the requisite number of surveys and field notes for review by the Board within the time specified by the Board's order. The evidence shows that Respondent submitted no surveys or field notes for Board review during the twenty-seven month probationary period.

   
   

7. By Final Order entered on February 5, 1990, in DPR's Case Nos. 106764 and 107454, the Board suspended Respondent's license for a period of twenty-four months. Pursuant to the Stipulation, which was incorporated in to the Final Order, the suspension was stayed to allow for a twenty-four month period of probation, during which time the Respondent was to meet certain conditions.

   
   

8. The Final Order in DPR Case Nos. 106761 and 107454 imposed three requirements on Respondent. First, Respondent was to pay an administrative fine of $2500.00 no later than thirty (30) days after the Final Order was filed. Second, during the first six months of probation, the Respondent was to provide verification of successful completion of a continuing education course in the Minimum Technical Standards. Third, within the first six months of probation, Respondent was to complete and return to the Board, the Board's study guide. It is undisputed that Respondent, although not present at the informal hearing, received a copy of the Final Order in these cases.

   
   

9. The Final Order in DPR Case Nos. 106764 and 107454 provided that within thirty days following the verification of successful completion of the Minimum Technical Standards seminar, the Board's consultant would randomly select six surveys performed by the licensee for submission and review by the Board. If the surveys submitted by the consultant to the Board were found to substantially comply with the Minimum Technical Standards, the Respondent would be released from probation at that time. If the surveys were found by the Board not to comply with the standards, the Board had the option of either lifting the stay and imposing the suspension, or directing the Board consultant to randomly select an additional six (6) surveys performed by the licensee for review by the Board. If the second set of surveys were found not to comply with standards, the stay of suspension would be lifted and the license would be suspended for the remainder of the twenty-four month period.

   
   

10. Contrary to the Administrative Complaint and the Disciplinary Worksheet for Case Nos. 106764 and 107454, the Final Order in these cases did not require Respondent to submit six (6) surveys with field notes and record plats to the Board by August 6, 1990. Therefore, Respondent's failure in this regard does not constitute a violation of the Final Order in Case Nos 106764 and 107454.

    
    

11. Notwithstanding the error in the Administrative Complaint and Disciplinary Worksheet for Case Nos. 106764 and 107454, it still remains that the actual terms of the Final Order in Case Nos. 106764 and 107454 were

    completely disregarded by the Respondent. According to the evidence presented, Respondent failed to pay the $2,500 administrative fine which was due on March 8, 1990 as required by the Final Order. Respondent did not attend a Minimum Technical Standards seminar by August 6, 1990. Also, Respondent did not complete and submit to the Board the study guide which was due August 6, 1990.

    
    

12. With regard to payment of the administrative fine, Paragraph 11 of the Stipulation states the following:

    
    

    Any fine imposed shall be paid no later than 30 days after the date of the filing of the Board's Final Order arising out of the informal hearing. If the Board shall impose a fine to assure payment of same, the following clause shall be in effect: the Respondent's licensure shall be suspended effective as of the date of the filing of the Board's Final Order imposing the fine, provided

    however, the effect of the suspension is stayed for

    30 days thereafter; if Respondent shall cause payment of said fine to be actually received by the Board within said 30 days, then the suspension imposed shall be automatically lifted upon payment of upon receipt of payment of said fine....

    
    

13. As a result of Respondent's failure to attend a Minimum Technical Standard's seminar, the condition precedent to the consultant randomly selecting six surveys performed by the licensee was not met. Therefore, the Board consultant was unable to request or select surveys performed by the Respondent for submission to the Board for evaluation and review.

    
    

14. Violations of the provisions or conditions of probation of the Final Order are expressly addressed in the Stipulation which was incorporated into the Final Order. Paragraph 14 of the Stipulation provides in relevant part the following:

    
    

    Failure of the licensee to 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. . .

    
    

15. On May 14, 1990, Respondent was put on notice by the Department Professional Regulation that he was in violation of the terms of the Final Order in DPR Case Nos. 106764 and 107454 for failure to pay the $2500 administrative fine.

    
    

16. By letter dated May 25, 1990, Respondent was notified that his license was suspended as of May 22, 1990, for failure to comply with terms of the Final Order in DPR Case Nos. 10674 and 107454, in that he failed to pay the fine of two thousand five hundred dollars ($2,500.00). The letter, received by Respondent on May 30, 1990, indicated that the Board voted to lift the stay and Respondent's licensed was suspended until further action of the Board. This action by the Board was consistent with the provisions of the Final Order.

    
    

17. Although the Final Order in Case Nos. 106764 and 107454 provided that "compliance of the licensee after the suspension might result in another stay

    and continued probation," Respondent never complied with any of the conditions set forth in the Final Order. Therefore the suspension was never stayed and remained in effect.

    
    

18. Respondent notified the Board that he filed for bankruptcy and was told that the administrative fine of $2,500.00 may be dischargeable. However, the evidence indicates that Respondent's bankruptcy petition was not filed until 1991, while the administrative fine was due in March, 1990, the preceding year. Thus, Respondent was not entitled to any relief from this obligation at the time it was initially due. Even if the administrative fine of $2,500.00 was discharged by the May 21, 1991 Order of the Bankruptcy Court, which released Respondent from all dischargeable debts, the other terms of the Final Order in Case Nos. 106764 and 107454, are not affected by the Order of the Bankruptcy Court. In his testimony, Respondent admitted that although the administrative fine might be dischargeable in bankruptcy, the other requirements imposed by the Final Order in DPR Case Nos. 10674 and 107454 were not dischargeable on this basis.

    
    

19. Respondent violated the provisions of the Final Order in DPR Case No. 59729 and the Final Order in DPR Case Nos. 106764 and 107454.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

21. Pursuant to Section 472.033(3), Florida Statutes, the Board of Professional Surveyors and Mappers is empowered to revoke, suspend, or otherwise discipline the land surveyor license of any licensee in Florida found guilty of any act enumerated in Section 472.033(1), Florida Statutes.

    
    

22. In the Administrative Complaints Petitioner has charged Respondent with failing to comply with terms of Final Orders of the Board of Professional Land Surveyors issued in prior disciplinary actions against him in violation of Section 472.033(1)(h), Florida Statutes. This provision provides the following:

    
    

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

       * * *

       (h) Failing to perform any statutory or legal obligation placed upon a licensed land surveyor; violating any provision 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.

       
       

23. In a disciplinary action involving license revocations, the burden is on the Petitioner to establish the facts upon which the allegations of misconduct are based. The Petitioner must prove its allegations by clear and convincing evidence. Ferris v. Turlington, 570 So.2d 292 (Fla. 1987).

    
    

24. Petitioner proved by clear and convincing evidence that Respondent failed to comply with the terms of the probation imposed by the Final Order of the Board of DPR Case No. 59729 in two respects. First, Respondent did not

    timely submit the required surveys and field notes. Second, Respondent did not complete the courses on Minimum Technical Standards. This evidence was undisputed by Respondent, who offered no reasons for his failure to comply with the Board's order. Consequently, the Board has proved two violations of a single lawful order of the Board in violation of Section 472.033(1)(h), Florida Statutes.

    
    

25. As to the Final Order issued in DPR Case Nos. 106764 and 107454, the Respondent failed to pay the $2,500 administrative fine, which was due on March 8, 1990. Respondent also failed to attend a Minimum Technical Standards seminar as required by the Final Order. Likewise, the evidence shows that Respondent failed to submit a study guide to the Board as required by this Final Order.

    
    

26. Respondent does not dispute that he failed to pay the fine assessed by the Board, and Respondent likewise does not dispute that he failed to attend a Minimum Technical Standards seminar, and that he failed to submit a study guide to the Board as required by the Final Order issued in DPR Case Nos. 106764 and 107454.

    
    

27. Respondent contends that his failure to pay the $2,500 fine is somehow associated with his filing bankruptcy. Respondent indicated that he contacted the Board and was told that the administrative fine was dischargeable. However, clear and convincing evidence is that Petitioner, in fact, told Respondent that the administrative fines may be dischargeable in bankruptcy. The evidence presented at hearing indicates that the administrative fine, $2,500, was due March 8, 1990. The Respondent filed bankruptcy in 1991, the year after the administrative fine became due. The General Order of Discharge was entered is May 24, 1991. Thus, it appears that the administrative fine was due well before Petitioner filed the claim for bankruptcy, and before the General Order of Discharge had been issued.

    
    

28. Even assuming that the administrative fine may be dischargeable in bankruptcy, the other requirements of the Final Order issued in DPR Case Nos. 106764 and 107454 were not effected by any of general discharge of bankruptcy. The clear and convincing evidence demonstrates that the Respondent not only failed to pay the $2,500 administrative fine, but also that he failed to attend a Minimum Technical Standards seminar and to submit a study guide both of which were due on August 6, 1990, in violation of Section 472.033(1)(h), Florida Statutes.

    
    

29. Petitioner proved that Respondent violated provisions of the in Final Order in DPR Case Nos. 106764 and 107454, and that he was in violation of Section 472.033(1)(h), Florida Statutes.

    
    

30. Having concluded that Respondent violated the provisions of the Final Order, he is thereby subject to disciplinary action by the Board. The question remains as to what action is appropriate.

    
    

31. Section 472.033(3), Florida Statutes lists the available penalties for such violations. Penalties may include revocation or suspension of license, implementation of administrative fine, issuance of a reprimand, placement of the licensee on probation, or restriction of the authorized scope of practice.

    
    

32. In previous disciplinary proceedings, the Board took actions which were designed to rehabilitate the Respondent and correct deficiencies. These actions apparently did not accomplish their purpose in that the Respondent failed to comply with the terms of Final Orders of the Board. It is clear that

the imposition of another fine would be ineffective here, as would a reprimand, given that the Respondent has been on probation and is currently suspended. A more stringent penalty is required in this instance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner revoke Respondent's license to practice land surveying.

RECOMMENDED this 2nd day of October, 1995, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-1271 & 95-1272

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the Petitioner's proposed findings of fact:

Paragraphs 1-2. Accepted and incorporated.

Paragraph 3. Accepted, except evidence does not support subsection (b).

Paragraphs 4-19. Accepted and incorporated to the extent not subordinate and unnecessary

Paragraph 20. Accepted, except evidence does not support that Discipline Action Worksheet accurately reflects a provision of the Final Order.

Paragraphs 21-26. Accepted, and incorporated to the extent not subordinate and unnecessary.

Paragraph 27. Accepted, and incorporated, except evidence does not support that Respondent was told that administrative fines were dischargeable.

Paragraph 28. Accepted and incorporated.

COPIES FURNISHED:

Miriam S. Wilkinson, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Mr. John D. Holt 925 Azure Avenue

West Palm Beach, Florida 33414

Angel Gonzalez Executive Director Board of Professional

Land Surveyors

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame, Esquire General Counsel

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Business and Professional Regulation, written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Business and Professional Regulation concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 95-001271

Orders for Case No: 95-001271