FLORIDA BOARD OF PROFESSIONAL ENGINEERS, Petitioner, vs. EARL E. HENRY, P.E., Respondent. / | Case No. 21-1019PL |
RECOMMENDED ORDER
A disputed-fact evidentiary hearing was held by Zoom video conference on April 23, 2021, before Administrative Law Judge Elizabeth W. McArthur of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: John Jefferson Rimes, Esquire
Florida Board of Professional Engineers Department of Business
and Professional Regulation
2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303
For Respondent: Earl E. Henry, P.E., pro se
6880 52nd Street North Pinellas Park, Florida 33781
STATEMENT OF THE ISSUES
At issue in this case is whether Respondent violated section 471.033(1)(k), Florida Statutes, by violating a Final Order previously entered by Petitioner in a prior disciplinary case; and, if so, what penalty should be imposed for the violation.
PRELIMINARY STATEMENT
On January 29, 2021, the Florida Engineers Management Corporation (FEMC), on behalf of Petitioner Florida Board of Professional Engineers (Petitioner or Board), issued an Administrative Complaint against Earl Henry, P.E. (Respondent or Mr. Henry). The Administrative Complaint charged Mr. Henry with a violation of section 471.033(1)(k) by failing to comply with a Final Order entered by the Board in a prior disciplinary case, FEMC Case No. 2015013030. The Administrative Complaint alleged that Respondent appealed the Board's Final Order to the Second District Court of Appeal (Case No. 2D18-1866), which affirmed the Board's Final Order on April 3, 2019, and issued its Mandate on April 23, 2019, but that as of the issuance of the Administrative Complaint, Respondent still had not complied with the Final Order.
Mr. Henry timely requested a disputed-fact hearing. He identified the only alleged fact he disputed as the allegation that the Board's Final Order had been affirmed by the Second District Court of Appeal. On March 17, 2021, the matter was referred to DOAH for assignment of an administrative law judge to conduct the requested hearing.
The hearing was scheduled by Zoom video conference on April 23, 2021. Prior to the hearing, both parties filed their witness and exhibit lists, and transmitted copies of their proposed exhibits to DOAH. The hearing went forward as scheduled, with both parties appearing and participating.
At the hearing, Petitioner presented the testimony of Wendy Anderson, FEMC Investigator. Petitioner's Exhibits 1 through 12 were admitted into evidence, without objection. Respondent testified on his own behalf.
Respondent's Exhibits 1 through 4 were admitted, without objection.
After the testimony and exhibits were received, the evidentiary record was closed. A ten-day deadline was established for the parties to file proposed recommended orders (PROs), running from the date of filing of the hearing transcript at DOAH.
The one-volume Transcript was filed on May 11, 2021. Petitioner timely filed its PRO. However, Respondent did not timely file a PRO by the deadline, which was May 21, 2021. Instead, on May 25, 2021, Respondent filed a "Response to the Petitioner's Proposed Recommended Order," which is not an authorized filing under this tribunal's rules for post-hearing filings.1 Nonetheless, Petitioner has not objected to Respondent's impermissible response or to the untimely filing. Therefore, the undersigned accepts the late filing as Respondent's PRO, as if Respondent had followed proper procedure by requesting and receiving an extension of the filing deadline (as the parties were informed they could do at the end of the hearing, provided they filed a written request before the deadline). Petitioner's PRO and Respondent's filing, which is treated as a PRO, have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Board is charged with regulating the practice of engineering pursuant to chapter 471, Florida Statutes. The FEMC is charged with providing administrative, investigative, and prosecutorial services to the Board, pursuant to section 471.038.
1 Florida Administrative Code Rules 28-106.215 and 28-106.216(2), part of the Uniform Rules of Procedure that apply to DOAH proceedings, address post-hearing filings. These rules provide that the presiding judge shall establish a single deadline for parties to file proposed orders containing proposed findings of fact and conclusions of law. The rules provide for parties to file their PROs at the same time, by the deadline established by the presiding judge, and do not permit either party to file responses to each other's PRO.
Mr. Henry is, and at all times material to this matter has been, a licensed professional engineer in the state of Florida, having been issued license number PE 45894.
In a prior disciplinary case designated FEMC Case No. 2015013030, the Board issued a Final Order on April 18, 2018 (2018 Final Order), determining that Mr. Henry had committed disciplinable violations and imposing disciplinary penalties.
The 2018 Final Order was the culmination of disciplinary proceedings that included the following steps: (1) FEMC, on behalf of the Board, issued an administrative complaint charging Mr. Henry with committing four counts of negligence in violation of specified statutes and rules; (2) Mr. Henry requested a disputed-fact administrative hearing to contest the charges;
(3) The Board referred the matter to DOAH, where it was assigned Case No. 17-3840 and proceeded to a disputed-fact evidentiary hearing before presiding Administrative Law Judge Hetal Desai; (4) the DOAH proceeding concluded with issuance of a Recommended Order by Administrative Law Judge Hetal Desai finding that Mr. Henry had committed three counts of negligence in violation of the statutory and rule provisions charged in the administrative complaint, and recommending penalties; and (5) Mr. Henry filed exceptions to the Recommended Order with the Board, to which responses were filed by the prosecuting attorney who represented Petitioner in the DOAH hearing.
The 2018 Final Order: (1) acknowledged the exceptions, but found them not in compliance with statutory requirements; (2) made a finding that the Findings of Fact in the Recommended Order were supported by competent substantial evidence and adopted them; (3) adopted the Conclusions of Law in the Recommended Order; (4) imposed discipline consistent with recommendations in the Recommended Order; and (5) taxed costs against Mr. Henry.
Mr. Henry timely appealed the 2018 Final Order to the Second District Court of Appeal. Earl E. Henry, P.E. v. Florida Board of Professional Engineers, Case No. 2D18-1866.
Mr. Henry was initially represented by counsel in his appeal. However, after filing several motions for extensions of time to file the initial brief, which were granted, Mr. Henry's attorney filed a motion to withdraw.
Mr. Henry filed his own initial brief, 90 days after the initial brief would have been due if extensions were not granted. Mr. Henry also filed his own amended initial brief, after the first attempt was stricken, as well as a reply brief, completing the briefing in the appeal on December 14, 2018.
The docket of the appeal, in evidence, reflects that no oral argument was requested or held and that no motion for stay of the 2018 Final Order during the pendency of the appeal was filed with the appellate court. No evidence was offered at the hearing to show that Mr. Henry or his attorney filed a motion with the Board at the outset of the appeal for a stay of the 2018 Final Order while the appeal was pending in the Second District Court of Appeal.2
On April 3, 2019, the Second District Court of Appeal filed its Opinion. The Opinion provided:
PER CURIAM.
Affirmed.
NORTHCUTT, KELLY, and ATKINSON, JJ., Concur.
In common parlance, this was a "PCA" Opinion, with "PCA" standing for "Per Curiam, Affirmed" without written explanation as to why the court has affirmed the lower tribunal's decision that is the subject of the appeal.
At the top of the page of the PCA Opinion in Mr. Henry's appeal of the 2018 Final Order, the following standard language appeared, stating: "NOT
2 As discussed below, Mr. Henry later filed a motion with the Board for a stay of the probationary terms in the 2018 Final Order, but his motion was not filed until after the appeal was concluded and the Mandate had issued.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED."
No motion for rehearing was filed with the Second District Court of Appeal within the time allowed by the Florida Rules of Appellate Procedure. Therefore, after the time to file a rehearing motion had expired, the court issued its Mandate on April 23, 2019.
The Mandate provided, in pertinent part:
THIS CAUSE HAVING BEEN BROUGHT TO THIS COURT BY APPEAL, AND AFTER DUE CONSIDERATION THE COURT HAVING ISSUED ITS OPINION;
YOU ARE HEREBY COMMANDED THAT SUCH FURTHER PROCEEDINGS BE HAD IN SAID CAUSE, IF REQUIRED, IN ACCORDANCE WITH THE OPINION OF THIS
COURT ATTACHED HERETO AND INCORPORATED AS PART OF THIS ORDER, AND WITH THE RULES OF PROCEDURE AND LAWS OF THE STATE OF FLORIDA.
The court's PCA Opinion, attached to the Mandate and incorporated as part of the Mandate, did not require further proceedings. It did not, for example, reverse the 2018 Final Order and remand for further proceedings consistent with its opinion, or reverse and remand with instructions to the Board. Instead, it affirmed the 2018 Final Order.
Mr. Henry claims to have misunderstood the Mandate as conveying to him the right to require further proceedings before the Board by requesting them. That is not a defensible interpretation of the Mandate, which identifies the court's opinion as the source for any required further proceedings. That is what is meant by "such further proceedings be had in this cause, if required, in accordance with the opinion of this court attached hereto and incorporated as part of this order." (emphasis added). If an opinion requires further proceedings, then such proceedings must be held in accordance with the opinion. But if the opinion does not require further proceedings, then further proceedings cannot be held in accordance with the opinion.
Despite the PCA Opinion affirming the 2018 Final Order, Mr. Henry sent a request to the Board on June 11, 2019, for "a rehearing."3 The request stated that it was being submitted "per" section 120.54(5)(b)5., Florida Statutes.4 The request also quoted the language in the Mandate and concluded by saying that "per said command," Mr. Henry was requesting "a rehearing on all the disputed items of the Administrative Law Judge's Findings of [F]act."
In addition to requesting a "rehearing" (second administrative hearing), Mr. Henry also submitted to the Board a request to "stay" the probationary requirements imposed by the 2018 Final Order "until the matter of a rehearing is resolved or decided." (Resp. Ex. 4). The request for a stay, in evidence, bears the date May 23, 2019. No statute or rule was identified by Mr. Henry as authority for his request for a stay.
The Board has not taken action to formally consider or rule on Mr. Henry's request for a rehearing, or his request for a stay. It has no authority to do so.
After the PCA Opinion and Mandate, Mr. Henry was contacted by a paralegal for the Board, whose title is Probable Cause & Final Order Compliance Coordinator, informing Mr. Henry of the requirements and
3 Respondent's Exhibit 3, in evidence, is Mr. Henry's June 11, 2019, request to the Board for a "rehearing." No other requests for rehearing were offered in evidence. However, Mr. Henry stated in other documents in evidence that after the Mandate, he submitted requests to the Board for rehearing "as per said command [of the Mandate]" on May 5, 2019, and again on May 23, 2019. The undersigned has considered only the request for rehearing in evidence, but the same findings would apply to any similar requests for rehearing that Mr. Henry filed with the Board after the Mandate.
4 Section 120.54(5)(b) authorizes the Administration Commission to adopt uniform rules of procedure "for the filing of request for administrative hearing by a respondent in agency enforcement and disciplinary actions." § 120.54(5)(b)5., Fla. Stat. The rule adopted to carry out this statutory directive is Florida Administrative Code Rule 28-106.2015. This rule applies to requests for administrative hearings by respondents when they are served with administrative complaints in agency disciplinary actions, to allow respondents to dispute the facts and contest the charges in an administrative hearing. Mr. Henry exercised this right in June 2017, when he requested a disputed-fact hearing in the prior disciplinary case that culminated in the 2018 Final Order. There is no statute or uniform rule of procedure authorizing a request for rehearing to the agency after a disciplinary action is concluded by final order.
deadlines for compliance with the 2018 Final Order. Even though there is no evidence of a stay of the 2018 Final Order having been issued by the Board or the Second District Court of Appeal during the pendency of the appeal, the Compliance Coordinator had revised the due dates for compliance with the 2018 Final Order as if compliance had been stayed while the appeal was pending. But after the 2018 Final Order was affirmed in the PCA Opinion and the Mandate was issued, signaling the end of the appeal, compliance with the 2018 Final Order was expected. Mr. Henry responded by saying that he was waiting for the Board to rule on his pending request for rehearing and his request for a stay. Mr. Henry was informed that there was no authority for the Board to address those requests and there would be no response by the Board. He was told to consult an attorney if he did not understand the process or did not accept what he was being told.
Mr. Henry did not accept what he was told by Petitioner's staff. Instead, he filed a "petition" with the Second District Court of Appeal in his now-concluded appeal, asking the court to hold the Board in contempt.
Mr. Henry's "Petition for a Finding of Contempt" argued to the appellate court that its Mandate commanded that "further proceedings be had in said cause." (In making this argument, Mr. Henry omitted the phrase "if required" and the phrase "in accordance with the opinion of this court that is attached hereto and incorporated as part of this order.") Mr. Henry stated that he had submitted one or more requests to the Board for a rehearing "as per said command," but had instead gotten an email notification that he needed to comply with the disciplinary requirements imposed by the 2018 Final Order. Mr. Henry added that when he asked about his request for rehearing, he was informed that the case was final and there was no option for rehearing. The upshot of Mr. Henry's petition to the Second District Court of Appeal was that he wanted the appellate court to hold the Board in contempt for refusing to conduct "further proceedings" as he contended was required by the Mandate. The relief he requested was for the court either to "Order a
Rehearing under F.S. 120.57 on all the disputed issues of the ALJ's Findings of Fact" or to proceed to hear and determine the facts itself. (Pet. Ex. 7).
By Order issued August 5, 2019, the Second District Court of Appeal ruled as follows: "We treat Appellant's petition for a finding of contempt as a motion to enforce mandate. The petition is hereby denied."
Mr. Henry then repackaged the "petition" into a new filing called a "Motion for a Finding of Contempt," but otherwise nearly identical to the prior filing. As in the petition, Mr. Henry's motion argued to the Second District Court of Appeal that the Board should be held in contempt for refusing to conduct "further proceedings" as he contended was required by the Mandate, and for ignoring his requests for rehearing and stay that he filed with the Board "as per said command." Mr. Henry concluded by saying that "because the Board has chosen to ignore the Mandate," it should be held in contempt and the court should order the Board "to begin FURTHER PROCEEDINGS as ordered in the MANDATE of the court." (Pet. Ex. 8).
By Order issued October 10, 2019, the Second District Court of Appeal disposed of the motion, ruling as follows: "Appellant's 'motion to the court' is stricken as unauthorized."
Thus, Mr. Henry's arguments that the Mandate required further proceedings and that the Board was wrong to ignore his requests for rehearing and stay were rejected by the same court that issued the PCA Opinion and Mandate. Despite this, Mr. Henry persists in this proceeding to re-argue those same arguments. Mr. Henry also has attempted to re-argue in this proceeding his complaints with the 2018 Final Order, including complaints with the fairness of the proceedings leading up to issuance of the 2018 Final Order. But his opportunity to raise any and all arguments to contest the 2018 Final Order was in the appeal to the Second District Court of Appeal. Mr. Henry failed to persuade the appellate court that there were grounds to reverse the 2018 Final Order or remand to the Board for further proceedings. Instead, the Second District Court of Appeal rejected the appeal
of the 2018 Final Order in its entirety when it issued its PCA Opinion affirming the 2018 Final Order. The PCA Opinion became final and binding on Mr. Henry and the Board upon issuance of the Mandate.
The 2018 Final Order that was affirmed on appeal imposed the following discipline:
Respondent's license shall be placed on probation for a period of two (2) years. Pursuant to Rule 61G15-19.004(1), F.A.C., the terms of probation include the following:
Successful completion of the Engineering Laws and Rules Study Guide;
Completion of a Board-approved course in Professionalism and Ethics;
Appearance before the Board at the end of the probationary period;
Plans review at six (6) and eighteen (18) month intervals.
In addition, the 2018 Final Order taxed costs incurred by FEMC in investigating and prosecuting the disciplinary case in the amount of
$16,000.00 (a reduction in the total amount of costs incurred by FEMC, which was $20,497.92, which could have been taxed against Mr. Henry). Mr. Henry was ordered to pay the $16,000.00 costs assessment "within one (1) year of the date of this Order."5
There is no dispute that Mr. Henry has not complied with any of the terms of the 2018 Final Order. At the hearing, Mr. Henry admitted he has
5 Petitioner's PRO erroneously states that the $16,000.00 cost assessment in the Final Order was "to be paid within two years of the Final Order, or no later than April 19, 2020." (Pet.
PRO at 3). The 2018 Final Order allowed one year, not two: "Costs are to be paid within one
(1) year from the date of this Order." 2018 Final Order p. 3, ¶ 3 (Pet. Ex. 1, Bates p. 007). However, the one-year deadline was voluntarily extended by the Board's Final Order Compliance Coordinator, as if a stay had been requested and granted during the pendency of the appeal, even though no such request was made by or on behalf of Mr. Henry. As such, the one-year time period would have logically begun on the date the Mandate was issued—
April 23, 2019—and expired on April 23, 2020.
not complied with the 2018 Final Order, admitting for the first time that he may have misunderstood the Mandate: "My whole problem here may have been that I misinterpreted the meaning of the mandate, okay. Okay. It was because of this mandate that I am trying to explain why I did not comply with the requirements of the final order." (Tr. 54).
Since there is no evidence that a motion to stay the 2018 Final Order during the pendency of the appeal was ever filed with and granted by the Board or the Second District Court of Appeal, the Board could have rightly insisted on compliance with its 2018 Final Order right away, despite the pendency of Mr. Henry's appeal for just over one year after the 2018 Final Order was issued. The staff for the Board did not take that position, extending the deadlines until after the 2018 Final Order was affirmed on appeal.
Mr. Henry has violated the 2018 Final Order of the Board in FEMC Case No. 2015013030. Mr. Henry's stubborn refusal to acknowledge the finality of the 2018 Final Order after it was affirmed without comment by the Second District Court of Appeal may have initially been borne of his unfamiliarity with the administrative and appellate processes and rules and his unwillingness to accept when others tried to explain it to him (including the five attorneys he said he consulted with, all of whom told him he had no case). But the court flatly rejected Mr. Henry's arguments. He can no longer claim that asserting the same arguments that the appellate court flatly rejected is still in good faith or based on a legitimate misunderstanding.
Mr. Henry told the court what he thought the Mandate required in his petition/motion for contempt. The court was willing to consider the petition as a motion to enforce the Mandate. That means if the court found any merit in Mr. Henry's argument that the Board had violated the Mandate by ignoring his post-Mandate requests for rehearing and a stay, the court would have taken action to enforce its Mandate. The court did not; it denied the motion to enforce the Mandate. It should have been obvious to Mr. Henry, at least by
this point, that the Mandate did not mean he could request further proceedings; the 2018 Final Order was affirmed, and the appeal was done.
It is now more than 19 months since the appellate court issued its second rejection of Mr. Henry's arguments. Compliance with the long-final 2018 Final Order is long past due.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2020).6
The FEMC, on behalf of the Board, issued an Administrative Complaint against Mr. Henry, which was served on him, pursuant to sections
120.60 and 471.038, Florida Statutes. Section 120.60 authorizes agencies to initiate disciplinary action against licensees by setting forth charges in an administrative complaint served on the licensee. Section 471.038(3) authorizes FEMC to provide administrative, investigative, and prosecutorial services to the Board.
Mr. Henry timely responded by requesting a disputed-fact administrative hearing pursuant to sections 120.569 and 120.57(1). The request complied with the requirements of rule 28-106.2015.
A proceeding to suspend or revoke a license, or to impose other discipline upon a licensee, is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491 (Fla. 1973). Petitioner therefore bears the burden of proving the charges against Respondent by clear and convincing evidence. Fox v. Dep't of Health, 994 So. 2d 416, 418 (Fla. 1st DCA 2008) (citing Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996)).
6 Citations herein to Florida Statutes are to the 2020 codification unless otherwise noted. It is noted that the statute charged in the Administrative Complaint has not been amended since 2010.
As stated by the Florida Supreme Court:
Clear and convincing evidence requires that 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 Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker, 492 So. 2d 797, 800 (Fla. 4th DCA 1983)).
The only allegation in the Administrative Complaint that was disputed by Respondent was that the 2018 Final Order was affirmed by the Second District Court of Appeal in Case No. 2D18-1866 on April 3, 2019.
Petitioner met its burden by proving that the 2018 Final Order was affirmed in its entirety and without comment, by the PCA Opinion issued by the Second District Court of Appeal in Case No. 2D18-1866 on April 3, 2019. Respondent offered no evidence to the contrary. He had no basis for disputing this allegation.
Petitioner proved that the PCA Opinion became final upon issuance by the court of its Mandate in Case No. 2D18-1866 on April 23, 2019.
Mr. Henry's apparent claim that the language in the Mandate somehow changed the outright affirmance by the PCA Opinion is wrong as a matter of law. The Mandate directed the lower tribunal (the Board) to conduct such further proceedings if required by the court's Opinion, which was attached to and incorporated as part of the Mandate.
What Mr. Henry wanted the court to do was reverse the 2018 Final Order and remand for further proceedings consistent with a written opinion explaining that the Findings of Fact (set forth in Judge Desai's Recommended Order and adopted by the Board in their entirety in the 2018
Final Order) were not supported by competent substantial evidence. But the court plainly did not do that. Instead, it affirmed the 2018 Final Order.
As Mr. Henry has acknowledged, the Second District Court of Appeal's review of the 2018 Final Order was governed, in part, by standards of review in section 120.68(7), Florida Statutes, providing as follows:
The court shall remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate, when it finds that:
There has been no hearing prior to agency action and the reviewing court finds that the validity of the action depends upon disputed facts;
The agency’s action depends on any finding of fact that is not supported by competent, substantial evidence in the record of a hearing conducted pursuant to ss. 120.569 and 120.57; however, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact;
The fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure;
The agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action; or
The agency’s exercise of discretion was:
Outside the range of discretion delegated to the agency by law;
Inconsistent with agency rule;
Inconsistent with officially stated agency policy or a prior agency practice, if deviation therefrom is not explained by the agency; or
Otherwise in violation of a constitutional or statutory provision;
but the court shall not substitute its judgment for that of the agency on an issue of discretion.
As Mr. Henry also acknowledged, the primary basis for his appeal of the 2018 Final Order was his argument that the Findings of Fact recommended by Judge Desai, which were adopted by the Board upon finding that they were supported by competent substantial evidence, were not, in fact, supported by competent substantial evidence. This is a common focal point for appeals of agency final orders. See, e.g., Stasinos v. Dep't of Bus. & Prof'l Reg., Constr. Indus. Licensing Bd., 209 So. 3d 18, 21 (Fla. 4th DCA 2016).
The Second District Court of Appeal did not "remand [the] case to the [Board] for further proceedings consistent with the court’s decision or set aside [the Board's] agency action." If the court had found that the 2018 Final Order depended on findings of fact not supported by competent substantial evidence, or that there was any other basis enumerated in section 120.68(7) for reversing and remanding for further proceedings or for setting aside the 2018 Final Order, the court would not have affirmed.
As explained by the court in Stasinos:
Section 120.68, Florida Statutes, governs appellate review of final agency action under the Florida Administrative Procedure Act. The inquiry on appeal is generally whether the final order is supported by competent, substantial evidence in the record. If so supported, this court must affirm the final order unless there is a demonstration of a material error in procedure, an incorrect interpretation of law, or an abuse of discretion.
209 So. 3d at 21 (citations omitted; emphasis added). Section 120.68(8) makes this clear:
Unless the court finds a ground for setting aside, modifying, remanding, or ordering agency action or
ancillary relief under a specified provision of this section, it shall affirm the agency’s action. (emphasis added).
The PCA Opinion affirming without comment the 2018 Final Order leaves no room for debate or argument about the result of Mr. Henry's appeal. He was unsuccessful convincing the court that the 2018 Final Order was not supported by competent substantial evidence so as to require a remand for further proceedings. The court did not find that there were any material errors in procedure or any other grounds for remanding the case for further proceedings. The court was therefore required to, and did, affirm.
As held in Florida Commission on Ethics v. Sullivan, 430 So. 2d 928, 932 (Fla. 1st DCA 1983), "the effect of a 'per curiam affirmed' decision (PCA) is clear: It becomes the law of the case, is res judicata," meaning that it resolves all issues and is binding on the parties to the appeal. The court elaborated, by reference to what the Florida Supreme Court had said about the effect of a PCA opinion:
In South Florida Hospital Corp. v. McCrea, 118 So. 2d 25 (Fla. 1960), the court addressed the effect of the word "affirmed" when used as the sole utterance of an appellate court in disposing of a case. The court noted that the word "necessarily means that the appellate court has carefully examined all points raised by all appealing parties and found them to be without merit." Id. at 31.
It is equally clear that the Mandate cannot be distorted as Respondent suggests to somehow change the meaning of the PCA Opinion. If the Opinion did not require further proceedings, then the Mandate did not change that. Mr. Henry offered a self-serving twisted interpretation of the Mandate, unsupported by its words, to argue that even though the court's PCA Opinion affirmed the 2018 Final Order, the Mandate conveyed to him personally the right to require further proceedings. Instead, the phrase "if required" in the Mandate refers to whether the court's opinion requires further proceedings.
Where, as here, the Second District Court of Appeal's PCA Opinion affirmed the 2018 Final Order and did not require further proceedings, it would be clear error for the Board, as the lower tribunal, to conduct further proceedings anyway.
This basic, fundamental point of appellate law was explained in National Education Centers, Inc. v. Kirkland, 678 So. 2d 1304, 1305-1306 (Fla. 4th DCA 1996):
We agree with appellant's argument that the trial court lacked authority to modify the original prejudgment interest award. In the previous appeal, this court affirmed the $11,510.70 award of prejudgment interest. [O]nce an appellate court affirms an order, judgment, or decree, the trial court loses all authority to change, modify, nullify, or evade that order, judgment or decree. … The fact that we did not discuss one of the issues does not mean we did not affirm that issue. (emphasis added; citations and internal quotes omitted).
Accord Bryan and Sons Corp. v. Klefstad, 265 So. 2d 382, 386 (Fla. 4th DCA 1972) ("The law in Florida is clear that after appeal of a judgment and its affirmance by an appellate court, the trial court is without authority to take any other action in the cause other than to carry out the mandate of the appellate court. On appeal and affirmance the judgment of the trial court becomes the judgment of the appellate court, and therefore, the trial court is without authority to change, modify, or alter the judgment … .").
The Mandate, itself, is simply the appellate court's order signaling that the court's opinion has become final, either because no motion for rehearing was filed with the appellate court pursuant to Florida Rules of Appellate Procedure 9.330 or 9.331, or, if filed, any such motions were disposed of by the appellate court, and the time has come to carry out the requirements of the court's opinion. When the court's opinion affirms the lower tribunal's order or judgment, then the affirmed order or judgment becomes final and binding on the parties as of the date of the Mandate. See,
e.g., Thibodeau v. Sarasota Memorial Hosp., 449 So. 2d 297, 298 (Fla. 1st DCA 1984) ("[P]ayment of compensation benefits affirmed on appeal become due upon finality of this court's order… . It is well settled that the judgment of an appellate court, where it issues a mandate, is a final judgment. … Accordingly, we hold that the judgment in the instant case became final on … the date mandate was issued." (citations omitted)); Beaty v. State, 684 So. 2d 206, 207 (Fla. 2d DCA 1996) ("Mr. Beaty's direct appeal was affirmed per curiam without written opinion. We hold that a judgment and sentence become final for purposes of rule 3.850 [deadline to file a motion for postconviction relief] when our mandate issues in a direct appeal in which the judgment and sentence are affirmed without a written opinion.").
As of April 23, 2019, the date of the Mandate, with the PCA Opinion attached, both Mr. Henry and the Board became bound by the 2018 Final Order. As of that date, the Board, as the lower tribunal, lost all authority to change, modify, nullify, or evade the 2018 Final Order, and Mr. Henry's efforts to change, or further delay compliance with, the 2018 Final Order came to an end.
Mr. Henry is guilty of violating section 471.033(1)(k), as charged, by not complying with the 2018 Final Order.
The Board has adopted Florida Administrative Code Rule 61G15- 19.004, setting forth standards that apply to the Board's imposition of disciplinary penalties. The penalty guidelines are set forth in paragraph (2), and express ranges of penalties which are generally to be followed by the Board in imposing disciplinary penalties for violations of specified statutory and rule provisions. For an initial offense of section 471.033(1)(k) by violating an order of the Board, the penalty range is as follows:
Depending on the severity of the violation, from Suspension until compliant with the order of the Board and $1,000.00 fine, to Revocation and
$5,000.00 fine.
Deviation from the penalty guideline range requires clear and convincing evidence of aggravating or mitigating circumstances. See Fla. Admin. Code R. 61G15-19.004(3). No such evidence was presented by either party.
Petitioner has taken the position that all it seeks to accomplish in this proceeding is to get Mr. Henry to comply with the 2018 Final Order. Therefore, Petitioner has proposed penalties at the lowest end of the penalty range to which the Board must adhere.
As previously noted, it would be reasonable to conclude that at least by the Second District Court of Appeal's rejection of Mr. Henry's post-Mandate filings, Mr. Henry's persistent refusal to acknowledge the finality of the 2018 Final Order could be characterized as no longer in good faith. Nonetheless, the undersigned accepts Petitioner's position advocating for leniency within the penalty range to which the Board must adhere.
The following penalties are recommended:
Mr. Henry's license shall be suspended until he complies with those terms of the 2018 Final Order with which he is able to lawfully comply without an active license.7 Those terms are: (1) payment of $16,000.00 as costs taxed against Mr. Henry; (2) successful completion of the Engineering Laws and Rules Study Guide; and (3) completion of a Board-approved course in Professionalism and Ethics.
Upon reactivation of Mr. Henry's license, the probationary requirements in the 2018 Final Order that require Mr. Henry to have an active license will begin for a two-year period. These requirements are:
7 Petitioner's PRO requests as a penalty that Mr. Henry's license be suspended until he complies with all requirements of the 2018 Final Order. However, Petitioner did not consider that the plans review provision would seem to require an active license. Therefore, the undersigned has recommended license suspension until Mr. Henry achieves compliance with those terms not requiring an active license, followed by a two-year probationary term during which the plans review provision would be required, along with the final appearance before the Board at the end of the probationary period.
(1) plans review at six and 18-month intervals; and (2) appearance before the Board at the end of the two-year probationary term.
Mr. Henry shall be ordered to pay a $1,000.00 fine.
Costs related to the investigation and prosecution of this case shall be awarded in Petitioner's favor and taxed against Mr. Henry.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers issue a final order:
Finding that Respondent, Earl Henry, P.E., violated section 471.033(1)(k), Florida Statutes, by not complying with the Board's 2018 Final Order entered in FEMC Case No. 2015013030;
Requiring Respondent to pay a fine of $1,000.00;
Suspending Respondent's license until he complies with the terms of the 2018 Final Order with which he is able to comply without an active license (i.e., payment of the $16,000.00 cost assessment and compliance with educational requirements);
Imposing a two-year probationary term following reactivation of Respondent's license subject to the requirements from the 2018 Final Order that require an active license (i.e., the plans review requirement at specified intervals followed by an appearance before the Board at the end of the probationary term); and
Awarding costs of investigating and prosecuting this action, to be taxed against Respondent.
DONE AND ENTERED this 16th day of June, 2021, in Tallahassee, Leon County, Florida.
COPIES FURNISHED:
S
ELIZABETH W. MCARTHUR
Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings this 16th day of June, 2021.
Earl E. Henry, P.E. 6880 52nd Street North Pinellas Park, Florida 33781 Zana Raybon, Executive Director Florida Board of Professional Engineers Department of Business and Professional Regulation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303-5268 Julie I. Brown, Secretary Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 | John Jefferson Rimes, Esquire Florida Board of Professional Engineers Department of Business and Professional Regulation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303 David Axelman, General Counsel Office of the General Counsel Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 Lawrence D. Harris, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 |
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 16, 2021 | Recommended Order | Respondent is guilty of violating ? 471.033(1)(k), Fla. Stat., by not complying with a final order of the Board in a prior disciplinary case, which was affirmed on appeal by PCA opinion. Recommend suspension followed by probation, $1,000 fine, and costs. |
