vs. ) Case No. 05-1672PL
Respondent. )
Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on July 19, 2005, by video teleconference at sites in Miami and
Tallahassee, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.
For Petitioner: Brian A. Higgins, Esquire
Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
This is a case in which the Petitioner seeks to take disciplinary action against the Petitioner on the basis of allegations that the Petitioner attempted to procure a license to practice surveying and mapping by making fraudulent misrepresentations about his education and about his experience.
At the final hearing in this case, the Petitioner presented the testimony of one witness, Abdel Cedeno, and offered five exhibits, all of which were received in evidence.1 The Respondent testified on his own behalf and also presented the testimony of one other witness, Joseph Bilu. The Respondent also offered one composite exhibit which was received in evidence.2
At the close of the evidentiary portion of the hearing, the parties were advised of the deadline for the filing of proposed recommended orders. A one-volume transcript of the final hearing was filed with the Division of Administrative Hearings on August 9, 2005. Both parties filed timely written proposals on August 19, 2005. These post-hearing submittals have been
carefully considered by the undersigned during the preparation of this Recommended Order.
Except where otherwise specifically noted, all references to the Florida Statutes are to the 1994 version of the Florida Statutes.
The Respondent, Stephen Philips Kilmon, is presently licensed as a professional surveyor and mapper, having been issued license number LS5439 on January 26, 1995.
On or about November 4, 1994, the Respondent filed an application for licensure as a professional surveyor and mapper on a form provided by the Board of Professional Surveyors and Mappers. In order to be eligible for licensure as a professional surveyor and mapper, the Respondent had to be a high school graduate. The Respondent graduated high school in 1976 and included proof of his graduation with his license application.3 In order to be eligible for licensure as a professional surveyor and mapper, it was not necessary that the Respondent have any formal education beyond graduation from high school.
Among other things, under the caption "EDUCATIONAL HISTORY" the application form requested the following information: "Name of School, College, or University Attended," "Year of Graduation," and "Degree." On his application form the
Respondent wrote that he had attended the University of Maryland, that he graduated in 1980, and that his degree was "BSCE."
At one time the Respondent studied civil engineering at the University of Maryland, but he never obtained a degree in civil engineering from the University of Maryland.
During the course of a deposition taken on April 1, 1998, the Respondent described his education formal education following high school as follows:
Q. Okay. And what was your major course of study while you were attending the University of Maryland?
A. Civil engineering.
Q. And did you obtain a degree?
A. No, I did not.
Q. What years did you attend the University of Maryland?
A. I attended the University of Maryland between 1976 and 1979.
Q. All right. Whay did you leave school without a degree; was there any particular reason why?
A. No particular reason.
* * *
Q. Okay. What year did you leave the University of Maryland?
A. In 1979.
* * *
Q. Okay. How many credit hours did you accumulate prior to leaving college?
A. I don't recall what the final number really was.
Q. How many was [sic] required for graduation?
A. Because I never graduated, I don't really recall what was required.
* * *
Q. All right. I'm trying to determine, and perhaps you can help me, did you leave in your sophomore year, junior or senior year?
A. It was in my sophomore year.
Later, in a letter dated September 30, 2001, the Respondent wrote to the Board of Professional Surveyors and Mappers and explained his education after high school as
follows:
While being a "Fact" and "Expert" witness for a Plaintiff in Court, it has been brought to my attention by attorneys on our team that my University of Maryland Bachelor of Science Civil Engineering (BSCE) degree had become unaccredited over time due to University administrative circumstances beyond a student's (my) control.
When I was at the age of 18, I was severely handicapped with chronic vision disorientation (Lazy Eyes). Following my freshman first semester I underwent major eye surgery to begin to correct my handicap. I transferred from UM, College Park Campus to become enrolled at the University of Maryland Baltimore County (UMBC) Campus in a
specialized handicapped program for persons with various disabilities for nearly two and a half years completing my MSCE degree there. Within a few days of my graduation in May of 1979, my degree I received was taken back and held in limbo due to a program administration accreditation error (University Red Tape Error) which went on for years contested by several sets of parents, and by my father on my behalf. At this same time my mother pas[sed] away in a car accident and I left Maryland behind. I moved to Miami in late November of 1979 and began my career in Surveying with Zurwelle-Whittaker on Miami Beach.
My father indicated to me in 1991 before he pas[sed] away from liver cancer, that after litigation settled the dispute, my degree was reinstated. After all this time had pas[sed] I never used or mentioned having a degree unaccredited or otherwise, because I knew technically I didn't keep it. Besides[,] my life went on without any need for a degree.
In 1994 I applied to obtain a Surveyor and Mapper's license, which does not require a college degree, only a high school diploma. However, on my license application I did write that I received my Bachelor of Science Civil Engineering (BSCE) degree from the University of Maryland, which as I recall, my father said it became reinstated. Well here's an update - it wasn't. And in hindsight I should have checked out my degree status myself, but I didn't. I don't wish to misrepresent my credentials to anyone. Its [sic] hard enough to have done the time in school, and not be rewarded with the credit for it.
Which brings me to this conclusion. I have learned over the past 25 years what really matters most. I acquired the discipline and knowledge to successfully open doors in life and move on, without regrets. If you have any further questions or need additional
information please do not hesitate to contact me, directly.4
Item 4 of the application form required that the Respondent provide the following:
Proof of employment in responsible charge as a photogrammetric mapper in the state for
24 months as of November 30, 1994, such proof to consist of five topographic or planimetric maps of areas in the state which maps were prepared by or under the supervision of the applicant using photogrammetric techniques, along with a verified, itemized report detailing methods, procedures, and amount of the applicant's personal involvement in the preparation of each map.
Item 5 of the application form required that the Respondent provide a sworn affidavit including the following:
The name and address of the applicant.
Certification that the applicant has been in responsible charge of photogrammetric mapping in the state for at least 24 months as of November 30, 1994, which mapping meets National Map Accuracy Standards.
Certification that the submitted maps are of areas in the state, that they were prepared by or under the supervision of the applicant using photogrammetric techniques, and that they meet the requirements of National Map Accuracy Standards.
A statement that the applicant has no criminal record related to fraudulent practices or directly related to the practice of surveying and mapping.
In response to the foregoing requirement, the Respondent included information about six specific projects he had worked on while he was employed with Carr Smith Associates. Those specific projects were described as:
Palmetto Expressway Improvement Project [From SW 16 St. to SW 2 St.];
Florida Board of Regents [FL Inter. Univ., University Park Campus];
Metro-Dade County, Port of Miami Authority [Port of Miami Landbase Model];
Florida Board of Regents [FL. Inter. Univ., North Miami Campus];
City of Coral Gables, FL. Public Works Dept. [City-Wide GIS];
Broward County Aviation Department [Ft. Lauderdale-Hollywood International Airport GIS Project and North Perry Airport GIS Project].
With regard to all six of the itemized projects mentioned immediately above, the Respondent submitted the maps and the verified, itemized reports "detailing methods, procedures, and amount of the applicant's personal involvement in the preparation of each map," as required by item 4 of the application form.5 Those maps and reports were sufficient to establish that the six projects described immediately above were all performed under the supervision of the Respondent.
During the Respondent's employment with Carr Smith Associates, Carr Smith Associates did not have the equipment necessary to do photogrammetry. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates subcontracted photogrammetric services to Southern Resource Mapping of Miami, Inc. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates subcontracted with Southern Resource Mapping of Miami, Inc., for photogrammetric
services for the projects described in paragraph 9, above. The fact that these projects were subcontracted to Southern Resource Mapping of Miami, Inc., was disclosed in affidavits submitted with the Respondent's application.6
At all times material to this case, Joseph Bilu has been a certified aerial photogrammetrist, and has been a vice- president of Southern Resource Mapping of Miami, Inc. Joseph Bilu provided photogrammetric mapping services in the name of Southern Resource Mapping of Miami, Inc., on all of the projects itemized in paragraph 8, above.
The photogrammetric mapping services provided by Joseph Bilu under his subcontracts with Carr Smith Associates for the projects itemized in paragraph 9, above, were all performed under the supervision of the Respondent. The Respondent was in responsible charge of the photogrammetric mapping projects itemized in paragraph 9, above.7
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. §§ 120.569 and 120.57(1), Fla. Stat. (2005).
In a case of this nature, the Petitioner bears the burden of proving that the licensee engaged in the conduct, and thereby committed the violations, alleged in the administrative complaint. Proof greater than a mere preponderance of the
evidence must be presented. Clear and convincing evidence of the licensee's guilt is required. See Department of Banking and
Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Pou v.
Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").
Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . .
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 explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such 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." In re
Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,
from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific factual allegations made in the administrative complaint. Due process prohibits an agency from taking disciplinary action against a licensee based upon conduct not specifically alleged in the agency's administrative complaint or other charging instrument. See Hamilton v. Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).
Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the administrative complaint] to have been violated." Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In deciding whether "the statute or rule claimed to have been violated" was in fact violated, as alleged by Petitioner, if there is any reasonable doubt, that doubt must be resolved in favor of the licensee. See Whitaker v. Department of Insurance
and Treasurer, 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah v. Department of Professional Regulation, Board of Medicine, 574
So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).
The Administrative Complaint in this case charges the Respondent with violations of Sections 455.227(1)(h) and 472.033(1)(b), Florida Statutes. At all times material, Section
455.227 (1)(h), Florida Statutes, read as follows:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(h) Attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board.
At all times material, Section 472.033(1)(b), Florida Statutes, read as follows:
(1) The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:
* * *
(b) Attempting to procure a license to practice surveying and mapping by bribery or fraudulent misrepresentations.
When the Respondent filed his application in November of 1994, Section 472.041, Florida Statutes, created a savings clause which at that time8 read as follows:
Effective January 1, 1995, the following persons shall automatically be licensed as surveyors and mappers:
All persons licensed as land surveyors in the state as of December 31, 1994.
All persons 18 years of age or older who, by December 1, 1994, have paid a registration fee of $350 and have submitted the following information to the department:
Certified proof of age.
Certified proof of graduation from high school.
Proof of employment in responsible charge as a photogrammetric mapper in the state for 24 months as of November 30, 1994, such proof to consist of five topographic or planimetric maps of areas in the state, which maps were prepared by or under the supervision of the applicant using
photogrammetric techniques, along with a verified, itemized report detailing methods, procedures, and amount of the applicant's personal involvement in the preparation of each map.
A sworn affidavit including the following:
The name and address of the applicant.
Certification that the applicant has been in responsible charge of photogrammetric mapping in the state for at least 24 months as of November 30, 1994, which mapping meets National Map Accuracy Standards.
Certification that the submitted maps are of areas in the state, that they were prepared by or under the supervision of the applicant using photogrammetric techniques, and that they meet the requirements of National Map Accuracy Standards.
A statement that the applicant has no criminal record related to fraudulent practices or directly related to the practice of surveying and mapping.
At all material times,the definitions at Section 472.005, Florida Statutes, included the following:
As used in ss. 472.001-472.041:
* * *
(6) The term "responsible charge" means direct control and personal supervision of surveying and mapping work, but does not include experience as a chainperson, rodperson, instrumentperson, ordinary draftsperson, digitizer, scriber, photo lab technician, ordinary stereo plotter operator, aerial photo pilot, photo interpreter, and other positions of routine work.
* * *
(8) "Photogrammetric mapper" means any person who engages in the practice of surveying and mapping using aerial or terrestrial photography or other sources of images.
Counts One and Two of the Administrative Complaint charge that the Respondent violated Sections 455.227(1)(h) and 472.033(1)(b), Florida Statutes, by making "fraudulent representations" concerning his experience as a photogrammetric mapper for the purpose of obtaining or procuring a license. As noted in the findings of fact in this Recommended Order, the Respondent's application contained truthful accurate information regarding the Respondent's experience as a photogrammetric mapper on the specific projects he described in his application. Such being the case, the evidence is insufficient to prove any
fraudulent representation about such experience. Accordingly, Counts One and Two of the Administrative Complaint should be dismissed.
Counts Three and Four of the Administrative Complaint charge that the Respondent violated Sections 455.227(1)(h) and 472.033(1)(b), Florida Statutes, by making "fraudulent representations" concerning his formal education for the purpose of obtaining or procuring a license. The proof in this case is sufficient to demonstrate that the Respondent made an erroneous statement about his education when he stated that he had a BSCE degree from the University of Maryland. But there is no clear and convincing evidence that any such erroneous statement was a fraudulent misrepresentation and there is no clear and convincing evidence that any such erroneous statement was for the purpose of obtaining or procuring a license. To the contrary, the subject erroneous statement cannot be a fraudulent misrepresentation because the subject matter of the statement was not material to the application in which the statement was made.
The issue of what types of statements constitute fraudulent misrepresentations was addressed in Department of Professional Regulation, Board of Medicine v. Pamela Sue Morgan,
R.C.P., DOAH Case No. 92-0014 (Recommended Order issued
April 20, 1992). The conclusions of law in the Morgan case include the following:
12. Section 468.365(1)(a), Florida Statutes, authorizes the Board to discipline a Florida-licensed respiratory care practitioner for "renewing a certificate or registration as provided by this part . . . by fraudulent misrepresentation." To establish that a licensee committed such a violation, the Department must show not only that the licensee provided false or misleading information on her renewal application, but that she knowingly did so with the intent to deceive or mislead the Board. Cf. First Interstate Development Corp. v. Ablandeo, 511 So.2d 536, 539 (Fla. 1987)("intentional misconduct is a necessary element of fraud. Indeed, to prove fraud, a plaintiff must establish that the defendant made a deliberate and knowing misrepresentation designed to cause, and actually causing detrimental reliance by the plaintiff"); Charter Air Center, Inc. v. Miller, 348 So.2d 614, 616 (Fla. 2d DCA 1977), cert. denied, 354 So.2d 983 (Fla. 1977)("[t]he elements of fraudulent representation are: a false statement pertaining to a material fact, knowledge that it is false, intent to induce another to act on it, and injury by acting on the statement"); Gentry v. Department of Professional and Occupational Regulations,
293 So.2d 95, 97 (Fla. 1st DCA 1974)(statutory provision prohibiting licensed physicians from "[m]aking misleading, deceptive and untrue representations in the practice of medicine" held not to apply to "representations which are honestly made but happen to be untrue;" "[t]o constitute a violation . . . the legislature intended that the misleading, and untrue representations must be made willfully (intentionally)"; Naekel v. Department of Transportation, 782 F.2d 975, 978 (Fed. Cir.
1986)("a charge of falsification of a government document [in this case, an employment application] requires proof not only that an answer is wrong, but also that the wrong answer was given with intent to deceive or mislead the agency;" "[a] system of real people pragmatic in their expectations would not easily tolerate a rule under which the slightest deviation from the truth [on an employment application] would sever one's tenuous link to employment"); Nyren v. HRS, 5 FCSR para. 126 (Fla. PERC 1990)("[a] mere mistaken entry on a travel voucher does not necessarily reflect that an employee has committed fraud or has intended to deceive the agency;" a showing that the employee intended to defraud or deceive the agency "is essential to sustain a charge of falsification of records").
The statements in the Respondent's application to the effect that he had received a BSCE degree from the University of Maryland were irrelevant to the issue of whether the Respondent was eligible for the license he was seeking, because graduation from high school, which the Respondent had done, was the only educational requirement for the license sought by the Respondent. Being irrelevant, those statements were not material to any determination of the Respondent's eligibility for the license he sought. And being immaterial, those statements did not constitute fraudulent misrepresentations for the purpose of obtaining or procuring a license. Accordingly, Counts Three and Four of the Administrative Complaint should also be dismissed.
In view of the foregoing, the Administrative Complaint issued against Respondent should be dismissed in its entirety.
RECOMMENDED that the Board enter a final order dismissing in its entirety the Administrative Complaint issued against the Respondent.
DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH
Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2006.
1/ The Petitioner's exhibits were prenumbered. Petitioner's Exhibits numbered 1, 3, 4, 5, and 6 were offered and received. Petitioner's Exhibit number 2 was not offered. It is also noted that, as discussed at further length in the transcript of the
hearing, the Petitioner's Exhibit number 3 is an incomplete copy of the Respondent's application for licensure. The Petitioner's Exhibit number 3 also bears an incomplete and insufficient certificate of authenticity.
2/ The Respondent's composite Exhibit number 1 was, by agreement of the parties, filed with the Division of Administrative Hearings at the same time as the transcript of the hearing.
3/ The Respondent did not include any information about his high school education on the application form under the caption "EDUCATION HISTORY," but he did include a photocopy of his high school diploma showing that he graduated on June 5, 1976, from Loch Raven High School in Baltimore County, Maryland.
4/ The evidence in the record of this case regarding the Respondent's attendance at the University of Maryland consists only of the Respondent's statements described in paragraphs 3, 5, and 6 of the findings of fact and Respondent's responses to requests for admissions (Petitioner's Exhibit 4). Although it would not have affected the outcome in this case, in cases of this nature a prudent Petitioner should usually present clear and convincing evidence in the form of documents from the university showing the details of the academic experience that was allegedly misrepresented.
5/ The maps and reports described in paragraph 10 of this Recommended Order were clearly required by the application form, as well as by Section 472.041, Florida Statutes, which authorized the issuance of the license sought by the Respondent. Those maps and reports were clearly an essential part of the Respondent's application. Nevertheless, the Petitioner chose not to offer the maps or the reports as exhibits. Therefore, the Petitioner offered into evidence only a portion of the application. In the normal course of events, it is virtually impossible to prove by clear and convincing evidence that an application contains fraudulent misrepresentations without offering the entire application in evidence. This is because intent is an essential element in every case involving allegations of fraudulent misrepresentation, and the intent with which a statement is made is more often than not determined by the context in which the statement is made.
Respondent's application file, Petitioner's Exhibit number 3. Joseph Bilu also testified at the final hearing.
7/ This finding is supported by the affidavits and testimony of the Respondent and Mr. Bilu, as well as by other affidavits in the application file. The Petitioner did not produce any evidence to impeach or contradict this fact. The Petitioner's arguments in this regard seem to be predicated on the belief that a person employed by one company cannot supervise the work of another company with which his employer has subcontracted to perform services. The evidence in this case is otherwise.
8/ Section 472.041, Florida Statutes, has since been repealed.
Brian A. Higgins, Esquire Department of Business and
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.
