The Issue Whether Petitioner is entitled to have his general contractor’s license re-instated.
Findings Of Fact The Petitioner received a license as a general contractor in 1984. At all times material to this case, the Petitioner was required to renew his license every two years. For the Petitioner, the renewal was due on or before August 31 of even numbered years. For example, the Petitioner’s license due for renewal in 2000 was due August 31, 2000. There are two types of licenses pertinent to this case: active and inactive. The renewal fees associated with these licenses are different. An inactive licensee pays a smaller renewal fee. The Respondent is responsible for maintaining records, collecting the appropriate fees, and processing license renewals for licensees. If a contractor fails to pay the requisite renewal fees when they are due the license automatically goes into a “delinquent status.” This status continues until the licensee makes good on the past due renewal fees and submits a complete renewal application. If the licensee does not remit the appropriate fees and completed application before the next licensing renewal period expires (the next two year cycle), the license becomes “null.” In this case, the Petitioner held an inactive license during the 1998-2000 two year-period. On or before August 31, 2000, the Petitioner should have submitted a complete application and paid the renewal fees to keep his license in good status. The Petitioner did not submit a complete application and did not remit the appropriate fees for renewal on or before August 31, 2000. Consequently, on September 1, 2000, the Petitioner’s license went into the delinquent status noted above. To clear this status the Petitioner was required to renew his license by submitting a complete renewal application with the appropriate fees on or before August 31, 2002. The Petitioner did not do so. Therefore, on September 1, 2002, the Petitioner’s license became “null” as a matter of law. The “null” status cannot be changed by paying unpaid fees. Instead, a licensee may either apply for and seek a new license or seek to re-instate the license. To that end, the Petitioner filed a request for reinstatement on or about June 9, 2006. When the Respondent denied the Petitioner’s request for reinstatement, the instant case ensued. Prior to August 31, 2002, the Petitioner did not contact the Respondent to relate personal tragedies, did not cure the delinquent renewal status, and did not pay the fees necessary to renew his inactive license. The Petitioner’s request for a refund (dated May 18, 2005) of the untimely fees paid in September 2002 was not approved. The Respondent provided no explanation for why the untimely fees were not refunded to the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for reinstatement of his license. The Respondent should, however, refund the Petitioner’s untimely paid fees. S DONE AND ENTERED this 28th day of March, 2007, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2007. COPIES FURNISHED: Rodney Williams 513 Northwest 22nd Avenue Apartment 4 Fort Lauderdale, Florida 33311-7773 Deborah Bartholow Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level-01 Tallahassee, Florida 32399-1050 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael Martinez, Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are: (1) whether Petitioner is qualified for a pari-mutuel wagering occupational license as a greyhound owner; and, (2) whether Petitioner is entitled to waiver of the provisions in accordance to Chapter 550, Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence adduced at hearing, the following Findings of Fact are made: Petitioner, Stephen M. Morris, submitted an application for a pari-mutuel wagering occupational license as a greyhound owner on or about February 24, 2005. On his application for a pari-mutuel wagering occupational license, Petitioner accurately reported that he had been convicted of the following three felonies: (1) possession and sale of a controlled substance, (2) trafficking in controlled substance (cannabis) in excess of 100 pounds, and (3) dealing in stolen property. The foregoing felony convictions were in or about 1976, 1984, and 1993, respectively, and were the result of offenses that occurred in Florida. Due to Petitioner's felony convictions, as noted in paragraph 2 above, his application for a pari-mutuel wagering occupational license was subject to denial. Consequently, on February 24, 2005, in addition to his application for a pari-mutuel wagering occupational license, Petitioner also requested that a waiver be granted so that he could obtain the license. Petitioner's application and his request for waiver did not include any information which would establish his rehabilitation or demonstrate that he has good moral character. As part of the Division's review of Petitioner's request for waiver, on or about April 5, 2005, Mr. Toner interviewed Petitioner. During the interview with Mr. Toner, Petitioner had the opportunity to present information that established his rehabilitation and demonstrated his present good moral character, but he did not produce such information. In light of the information regarding Petitioner's felony convictions, which are undisputed and included in Petitioner's application, Petitioner does not meet the eligibility requirements for the license which he seeks. By Petitioner's own admission, he was convicted of the felony offenses noted in paragraph 2 above. The number of felony convictions and the times that the offenses were committed, show a pattern of serious criminal behavior and recidivism. Petitioner may be rehabilitated and may have present good moral character. However, Petitioner did not testify at the final hearing and presented no evidence that he has been rehabilitated and has present good moral character. Absent from the record is any testimony from Petitioner or from Petitioner's friends, relatives, business associates, employers, or church members regarding Petitioner's good conduct and reputation subsequent to the date of his last felony conviction. In absence of any evidence that Petitioner has been rehabilitated and has present good moral character, the Division has no basis to grant Petitioner a waiver.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order denying Petitioner, Stephen M. Morris', application for a pari-mutuel wagering occupational license and his request for waiver. DONE AND ENTERED this 30th day of December, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2005. COPIES FURNISHED: Stefan Thomas Hoffer, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stephen M. Morris 162 Warren Avenue New Smyrna Beach, Florida 32168 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue in this case is whether Petitioner is entitled to issuance of an occupational license, pursuant to section 550.105, Florida Statutes.
Findings Of Fact The Parties Petitioner, John A. Short, is an applicant for a general individual occupational license, pursuant to section 550.105(2)(a), which would authorize him to work as a blacksmith and farrier at licensed pari-mutuel facilities in Florida.4/ Respondent is the state agency charged with issuing occupational licenses to employees of pari-mutuel wagering facilities in the state of Florida pursuant to chapter 550. Petitioner's Application for Occupational License and Waiver On December 11, 2017,5/ Petitioner filed with Respondent DBPR PMW-3120, Individual Occupational License Application, seeking to obtain a pari-mutuel wagering general individual occupational license. Also on December 11, 2017, Petitioner filed DBPR PMW-1380, Request for Waiver, seeking a waiver, pursuant to section 550.105(5)(c) and rule 61D—5.006, of disqualification from occupational licensure under section 550.105(5)(b) on the basis of a felony conviction. In his license application filed on December 11, 2017, Petitioner disclosed that he had a prior felony conviction that was adjudicated on September 22, 1998, in Jefferson County, Kentucky.6/ Subsequently, on March 5, 2018, Petitioner filed an amended application page on which he disclosed two other criminal offenses: receiving stolen property, and possession of marijuana. Both of these offenses, which were misdemeanors, were adjudicated on November 24, 1991, in Kentucky. On June 13, 2018, Petitioner participated in a waiver interview conducted by Respondent, as required under rule 61D-5.006. At the interview, Petitioner disclosed that he had several other criminal convictions, some of which had not been listed on his license application. In the Denial Letter, Respondent notified Petitioner that it was denying his application on the basis of his felony conviction for third degree assault on a police officer and his failure to disclose all of his convictions on his license application. Respondent also notified Petitioner that it was denying his request for a waiver. Evidence Adduced at the Final Hearing As noted above, Petitioner is a blacksmith and farrier, and he currently works in that trade in Florida, where he now resides full time. Specifically, Petitioner works with Marshall Hudson, also a blacksmith and farrier, who is a subcontractor to the Wellington Equestrian Federation at Equestrian Sport Productions in Wellington, Florida. Petitioner has worked with Hudson for four or five seasons, shoeing horses of many different breeds, including thoroughbreds, quarter horses, standardbreds, walking horses, saddlebreds, and carriage horses, at the barns, showgrounds, and other venues at which the horses are located. The competent, credible evidence establishes that Petitioner is, or has been, licensed by the Kentucky Horse Racing Commission as a blacksmith and farrier over a period of several years,7/ with the exception of a short period in 2016 during which his license had lapsed. Pursuant to his Kentucky occupational license, Petitioner is, or has been, authorized to conduct his trade at licensed racing facilities in Kentucky, including Churchill Downs and other tracks. Petitioner credibly testified——and no countervailing evidence was presented——that he has never been subject to licensure discipline during the entire time he has been licensed in Kentucky. Petitioner's Criminal Offenses At the final hearing, Petitioner was forthright regarding his criminal record. He testified that he had been convicted of third degree assault on a police officer, a felony, in Jefferson County, Kentucky in 1998,8/ and credibly explained the circumstances surrounding that conviction. His account of that incident provided at the final hearing is consistent with that provided in his June 13, 2018, waiver interview.9/ Petitioner also readily acknowledged that he had been convicted of numerous misdemeanor offenses, some of which have been expunged from his criminal record. These include theft by deception, receiving stolen property, shoplifting, carrying a concealed weapon, possession of marijuana, driving under the influence, and several traffic—related offenses. With the exception of the possession of marijuana and some traffic—related offenses, Petitioner's criminal offenses were committed during the 1990s. His most recent arrest was in 2011, for misdemeanor possession of marijuana, which was resolved by paying a $150.00 fine. Since then, Petitioner has not been convicted of any crimes.10/ There was no evidence presented showing that Petitioner has ever engaged in criminal activity regarding pari— mutuel wagering, gambling, bookmaking, cruelty to animals, or that is a capital offense.11/ Evidence Regarding Petitioner's Character Hudson testified regarding Petitioner's character. He attested that Petitioner is a good person who has a talent for working with horses. He has never known Petitioner to have a conflict with any owner, rider, or veterinarian in connection with any of the horses that Petitioner has worked with over the years. At the final hearing, Petitioner acknowledged that in 2016, he engaged in pari-mutuel work for a short period of time in Kentucky without being licensed. Petitioner's Kentucky Horse Racing Commission occupational license had lapsed while he was not working in—state. He renewed it later that year, but during the time his license had lapsed, he occasionally worked at Churchill Downs in order to make enough money to apply for a new occupational license. On those occasions, he rode into the facility in the truck of another racetrack employee who was licensed, and no one questioned his presence because they knew him from having previously worked there, while he was licensed. He acknowledged that he knew he was legally required to hold a license to gain access to the backside of pari-mutuel racetracks in Kentucky, but testified that it was commonplace for unlicensed persons to work in the backside at Churchill Downs, except on large racing event days. No evidence was presented that Petitioner has ever accessed the backside of, or engaged in activities requiring occupational licensure at, pari-mutuel facilities in Florida while not being licensed to do so.12/ Findings of Ultimate Fact Petitioner's Felony Conviction As discussed above, Petitioner readily acknowledged that he was convicted of third degree assault on a police officer, a felony, in Kentucky in 1998. Respondent is authorized, pursuant to section 550.105(5)(b), to deny Petitioner's application for an occupational license on the basis of his felony conviction. Waiver of Disqualification from Licensure Section 550.105(5)(c) authorizes Respondent to waive licensure disqualification under section 550.105(5)(b) if "the applicant establishes that she or he is of good moral character, that she or he has been rehabilitated, and that the crime she or he was convicted of is not related to pari—mutuel wagering and is not a capital offense." As discussed above, there is no evidence showing that Petitioner has been convicted of any crime involving pari—mutuel wagering or that is a capital offense. Therefore, the question becomes whether the preponderance of the evidence shows that Petitioner is rehabilitated and of good moral character such that, pursuant to section 550.105(5)(c) and rule 61D—5.006, he is entitled to a waiver from licensure disqualification. The question whether a person is rehabilitated from his or her criminal conviction primarily focuses on the person's behavior subsequent to committing the offense, rather than focusing solely——or even primarily——on whether the person committed the offenses.13/ As discussed above, Petitioner was forthright in acknowledging that he had committed numerous criminal offenses in the past——one of them a serious felony that, pursuant to statute, has effectively excluded him from obtaining an occupational license. This is his only felony offense, and was committed over 20 years ago. Although Petitioner committed several offenses subsequent to his 1998 felony conviction, they were misdemeanors, the majority of which were committed in the 1990s and many of which subsequently have been expunged from his record. His most recent offense, misdemeanor possession of marijuana, for which he paid a small fine to resolve, occurred in 2011, some eight years ago. There is no evidence that he has engaged in criminal behavior since then. Based on the foregoing, the undersigned finds, as a matter of ultimate fact, that Petitioner is rehabilitated from his 1998 felony in Kentucky, which is the basis on which Respondent has proposed to deny his occupational license application. See J.D. v. Fla. Dep't of Child. & Fams., 114 So. 3d 1127, 1131 (whether an applicant is rehabilitated is an issue of ultimate fact to be determined by the trier of fact). Marshall Hudson, a colleague with whom Petitioner has worked for a few years now, vouched for Petitioner's character. Petitioner testified, credibly, that he has never had any "problems" associated with his work as a blacksmith and farrier. Respondent presented no evidence to the contrary. Petitioner admitted to working without a license in the backside of Churchill Downs in Kentucky for a short time, approximately three years ago. The evidence establishes that he did so because he needed the work in order to make enough money to apply for an occupational license, since his had lapsed while he had not been working in—state. Under these circumstances, it is understandable that Petitioner would accept the opportunity to make money that would enable him apply for an occupational license that would allow him to legally practice his trade. Once Petitioner had earned enough money to obtain an occupational license, he did so. It is further noted that there was no evidence presented that Petitioner has since engaged in the unlicensed practice of his trade in Kentucky or in any other state. The evidence also does not show that Petitioner has ever engaged in the unlicensed practice of his trade at licensed pari—mutuel facilities in Florida. Importantly, too, no evidence was presented showing that Petitioner has ever engaged in conduct involving gambling, bookmaking, or cruelty to animals, and none of his criminal offenses involved pari—mutuel wagering——conduct that would rightfully raise significant concerns as to whether he should be licensed. Based on these considerations, the undersigned determines, as a matter of ultimate fact, that Petitioner is of good moral character for purposes of obtaining a waiver, pursuant to section 550.105(5)(c) and rule 61D—5.006. See Albert v. Fla. Dep't of Law Enf., 573 So. 2d 187 (Fla. 3d DCA 1991)(except where a specific provision of statute has categorically——i.e., absolutely and without qualification—— disqualified an applicant from consideration for licensure, the question of what constitutes "good moral character" is a question of fact to be determined by the trier of fact).14/ Failure to Disclose Criminal History Respondent proposes to deny Petitioner's application on the basis that he did not disclose his entire criminal history, as required by the "Background Information" section of the occupational license application form. The evidence establishes that Petitioner did not disclose his entire criminal history on the application form filed on December 11, 2017, as supplemented on March 5, 2018. However, this is a de novo proceeding designed to formulate agency action, not review action taken earlier and preliminarily. As such, Petitioner was entitled to present, at the final hearing in this proceeding, information regarding his criminal history additional to that provided in his application. At the final hearing, in response to Respondent's questioning in its case in chief, Petitioner testified regarding each criminal offense he had committed. Petitioner's testimony regarding his complete criminal history at the de novo final hearing in this proceeding satisfies the requirement in the occupational license application Background Information section, that his complete criminal history be disclosed. Accordingly, failure to disclose his criminal history is not a basis for denying his application pursuant to section 559.791.
Conclusions For Petitioner: John A. Short, pro se 3701 Quantum Lakes Drive, Suite 109 West Palm Beach, Florida 33426 For Respondent: James A. Lewis, Esquire Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399—2202
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's application for a pari-mutuel wagering occupational license. DONE AND ENTERED this 6th day of August, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 2019.
Findings Of Fact Emerald applied for an outdoor advertising sign permit for a location approximately 778 feet west of the location for which a permit had previously been issued to Lamar. If the permit previously issued to Lamar were not in spatial conflict with the permit site sought to be used by the Petitioner, the Petitioner's permit could be granted. The Petitioner's proposed site, however, is in statutorily prohibited proximity to Lamar's site, if Lamar's permit is deemed valid. The Department denied Emerald's application because its proposed application was, in the view of the Department, in spacing conflict with the site related to Lamar's permit. The controversy at issue relates to a parcel of land in Destin, Florida, owned by members of the family of Kathleen Jones. Herman Jones owned a portion of the property, and Mildred Castro owned a portion of the property. Kathleen Jones held a life estate to Mildred Castro's portion of the property. Permits were issued to Lamar on June 25, 1981 for a sign at the Jones/Castro site. The sign was erected in August of 1981 and was supported by leases of the real estate involved between Lamar and the Joneses. That sign was maintained continuously until May of 1992. Herman Jones sold his portion of the property in 1992 to Frank J. Roberts and Destin Renaissance, Inc. A survey in conjunction with that sale revealed that the sign was partially on the parcel sold to Roberts and partially on the parcel retained by the Jones family. Lamar, accordingly, moved its sign, since it encroached on the Roberts parcel and executed a release of its lease as to the real estate which Herman Jones had sold to Roberts. Ever since the 1981 erection of the sign, the lease for the site had been between Lamar and Kathleen Jones. It was a written lease and provided for annual renewals. The annual lease payment had been increased in 1985 and again in 1987. On July 27, 1990, the lease was again re-written to increase the annual rental payment. On March 11, 1992, Mr. Roberts sent a letter to the Department's Chipley office stating that he and his corporation had purchased the property from Herman Jones and that he did not have a lease with Lamar. Acting upon that letter, the Department sent a letter to Lamar on April 6, 1993 which stated: This office has received information to the effect that you no longer have permission from the land owner to erect or maintain signs on the South side of US 98, 6.3 miles East of SR 85. The permits numbers are AE678-06 and AE679-06. If, in fact, this information is true and correct the permits issued for these sites are invalid pursuant to Section 479.07(7) Florida Statutes. You are hereby notified that the Department's determination of invalidity will become con- clusive and the subject permit(s) will be revoked unless you elect to challenge this action by requesting an Administrative Hearing pursuant to Section 120.57, Florida Statutes, within thirty (30) days from receipt of this letter. The request should be addressed to: Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 In the interim, if you can furnish documentary evidence of current permission from the present property owner to refute this information, it may be possible to resolve this matter to mutual satisfaction. Lamar replied to that letter on April 15, 1993 stating: We do have landowner permission for the referenced site as evidenced by our recorded lease of 8/07/90 and our amended lease for the same site dated 12/16/92. In addition the referenced tags were replaced by tags BG796-35 and BG797-35 on 2/15/93. This should be substantial evidence to refute any claim that we do not have landowner permission. Please indicate to me in writing the effect this will have on the need for an administrative hearing. In conjunction with the submittal of that letter of April 15, 1993, Lamar submitted a copy of its recorded lease with Herman Jones dated August 7, 1990 and a copy of its lease with Kathleen Jones dated December 16, 1992. Upon receipt of those documents, the Department concluded that Lamar did have written permission from the landowner to erect a sign at a location for which the permits described in paragraph three above were issued. The Department took no further action to revoke Lamar's permit, and Lamar, therefore, did not apply for an administrative hearing. The Department rejected Emerald's application by letter dated February 9, 1993, and Emerald requested an administrative hearing to contest that initial decision. The rejection of Emerald's permit application was due to the fact that the proposed permit was located less than 1,000 feet (778 feet) from Lamar's permit location. The Department took the position that Lamar's permits were still valid because it had provided satisfactory evidence to the Department that it still had landowner permission for the subject Lamar sign, by presenting a valid lease for the property in question, the Jones/Castro parcel.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Transportation finding that the applications of Emerald Outdoor Advertising, Inc. for outdoor advertising permits in Destin, Florida, be denied. DONE AND ENTERED this 1st day of February, 1995, in Tallahassee, Florida. P. MICHAEL RUFF 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 1st day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2668T Petitioner's Proposed Findings of Fact Accepted. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter, and as constituting a conclusion of law instead of a proposed finding of fact. Respondent Department's Findings of Fact The Respondent, Department of Transportation, adopts the proposed findings of fact submitted by the Respondent, Lamar Advertising Company of Ft. Walton Beach, Inc. Thus, those proposed findings of fact are accepted. Proposed finding of fact number nine submitted by the Department, in addition to those submitted by Lamar, is rejected as being unnecessary and subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent Lamar's Proposed Findings of Fact The Respondent, Lamar Advertising Company of Ft. Walton Beach, Inc.'s proposed findings of fact are accepted in their entirety as are the facts stipulated to by the parties. COPIES FURNISHED: Martin B. Daniel, Esq. 47 North Third Street Memphis, TN 38103 Robert P. Gaines, Esq. BEGGS & LANE Post Office Box 12950 Pensacola, FL 32576 Paul Sexton, Esq. Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, Esq. General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether Petitioner's license as a Professional Surveyor and Mapper became void on March 1, 1997, by operation of Section 455.271, Florida Statutes. If so, whether the Board of Surveyors and Mappers (Board) has the authority to reinstate Petitioner's license in any manner other than that set forth in Section 455.271(6), Florida Statutes. Whether the Board is estopped from asserting that Petitioner's license should not be reinstated. Whether Petitioner is entitled to have his license reinstated by operation of Section 472.041, Florida Statutes.
Findings Of Fact Petitioner was initially licensed as a Professional Surveyor and Mapper on July 11, 1986, and issued license number 0004297. Such licenses must be renewed every two years pursuant to Section 472.017, Florida Statutes. The Board is an agency of the State of Florida with the duty to regulate those licensed as Professional Surveyors and Mappers. Pursuant to Section 472.015, Florida Statutes, DBPR is the agency of the State of Florida that actually issues such licenses. It is undisputed that Petitioner renewed and maintained an active license through the 1993/1994 biennium, which ended February 28, 1995. There is a conflict in the evidence as to whether Petitioner renewed his license after the 1993/1994 biennium. Petitioner testified that he mailed to DBPR by regular mail a form renewing his license for the 1995/1996 biennium, enclosed a check in the appropriate amount with the renewal form, and requested in writing on the back of the renewal form that the status of his license be changed from active to inactive because he could not at that time meet continuing education requirements. Petitioner produced a copy of the renewal form and a copy of the check, dated February 10, 1995, he said he mailed to DBPR. Petitioner did not know whether his check had been cashed, and he did not receive anything from DBPR reflecting that his license had been renewed and placed in an inactive status. Whenever any licensee renews a professional license, DBPR issues and mails a two-part license containing a wallet portion and a display portion that verifies the renewal. 3/ Petitioner made no effort to determine why his check had not been cashed or why he had not received his renewed license. Petitioner's failure to follow-up on his renewal request can be explained, in part, by the fact that his life was in disarray, both from a personal and a professional perspective. During this period in 1995, Petitioner had closed his surveying business and was working in an unrelated business, he was living in the marital residence on an intermittent basis, and he was depending on his estranged spouse and his children to deliver his mail to him. Respondent's records do not reflect that Petitioner took any action after the 1993/94 biennium to renew or inactivate his license. Had Petitioner taken such action, Respondent's records would have contained a renewal request form, the request to inactivate the license, and documentation that a renewed license had been forwarded to Petitioner. Had DBPR received a renewal check from Petitioner, its records would reflect that the check had been received and negotiated. The conflict in the evidence is resolved by finding that Petitioner failed to renew his license after the 1993/1994 biennium. On March 1, 1995, Petitioner's license became delinquent pursuant to Section 455.271(5), Florida Statutes. On March 9, 1995, DBPR changed its computer records to reflect that Petitioner's license status had been changed to delinquent. In November 1996, Petitioner's address of record with DBPR was his marital residence, 1620 Southwest 99 Court, Miami, Florida. Petitioner continued to use the marital residence as his address of record with the Board and DBPR until November 1999. There was a dispute in the evidence as to whether DBPR and the Board had Petitioner's correct address of record. Petitioner introduced a roster of individuals and firms holding active Professional Surveyors and Mappers licenses that was prepared from the Board's data base as of October 1994. This roster contained an incorrect address for Petitioner. Respondent established that this roster was not used by either the DBPR or the Board to mail any of the forms or notices at issue in this proceeding. Respondent also established that both DBPR and the Board had Petitioner's correct address of record at all times pertinent to this proceeding. The conflicting evidence is resolved by rejecting Petitioner's contention that the pending cancellation notice was not mailed to his address of record in November 1996. Petitioner testified that he never received any notice that his license was about to be cancelled. The records of DBPR established that a Notice of Pending Cancellation of License was processed by DBPR on November 18, 1996, and mailed to Petitioner at his address of record on November 22, 1996. The notice advised that Petitioner's license would become null and void on March 1, 1997, if the license was not placed on an active or inactive status by that date. The notice also advised that it was the only notice Petitioner would receive before his license became null. Petitioner initiated no communication with either DBPR or the Board in 1996, 1997, or 1998. On March 1, 1997, Petitioner's license became null by operation of Section 455.271(6), Florida Statutes. DBPR entered in its computer system on March 9, 1997, that the status of Petitioner's license had been changed from the classification of "delinquent" to the classification of "null and void." In 1999, Petitioner decided to return to activities requiring licensure as a Professional Surveyor and Mapper. When he applied for a job with a surveying company in the fall of 1999, he learned that his license was classified null and void. Petitioner, through attorney T. S. Madson, II, moved the Board to reinstate his license and requested the opportunity to present argument in support of his motion at the Board meeting scheduled for January 12-14, 2000, in Tallahassee, Florida. Mr. Madson and Petitioner appeared before the Board on January 13, 2000. Upon hearing Petitioner's claim that he had not received the pending cancellation notice in November 1996, the Board voted to reinstate his license. 1/ The Board did not enter a written order memorializing that vote. On March 6, 2000, counsel for DBPR filed a formal motion that the Board reconsider its vote to reinstate Petitioner's license, arguing that the Board lacked the legal authority to reinstate a license that had become null and void. Subsequent to the Board's vote on January 13, 2000, Petitioner engaged in activities that require licensure as a Professional Surveyor and Mapper. Until May 2000, Petitioner sealed surveys using license number 0004297. On May 18, 2000, at a duly noticed meeting in Key West, Florida, with Petitioner and Mr. Madson in attendance, the Board addressed DBPR's motion to reconsider. After debate, the Board voted to grant the motion to reconsider and thereafter voted to rescind its previous order reinstating Petitioner's license. A written Order Rescinding Reinstatement of License was formally entered on May 31, 2000. The basis for the vote was the Board's determination that it lacked the legal authority to reinstate Petitioner's license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application that his license be reinstated. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2001.
Findings Of Fact At all times pertinent to the matters contained herein, Respondent was licensed as a professional land surveyor in Florida and held license No. LS 0002934. On October 9, 1984, the Petitioner, Board of Professional Land Surveyors, after an informal hearing at which Respondent was present, entered a Final Order finding that he had, in several instances in the practice of professional land surveying, failed to perform in accordance with the minimum technical standards for land surveying and ordered his license to be suspended for 6 months; that he pay a $500.00 fine within 30 days of the Order; and that he submit a series of surveys and field notes for the review of the Board over a period of time subsequent to the reinstatement of his license. Respondent contends he agreed to an informal hearing because of recommendations from a representative of the Department of Professional Regulation's, (DPR), local investigative office. However, he was present at the hearing, was afforded an opportunity to present matters in his behalf, and through counsel, filed an appeal to the 4th District Court of Appeals of the Final Order in question which appeal, he subsequently dismissed. Respondent failed to pay the $500.00 fine on time as required. He contends this was because he had appealed the Final Order and was only one month late. Respondent also failed to file the required sets of surveys after the reinstatement of his license. The first was 6 months late and he cannot give a reason for that other than he was in mild shock as he felt he was a victim of "judicial error." His attorney was appealing the Final Order and he didn't pay attention to the dates. The 4th set of surveys was due in February, 1987 and has not been submitted as of this date. He contends it was not his intention to drag his feet in these submissions. After receiving the reviewer's criticisms of his earlier submissions, he felt they were not in keeping with the minimum standards and he requested clarification. He claims this is the reason for the delay but this excuse is not persuasive. His comment that he failed to pay attention to the dates for compliance with the requirements of the Final Order seems to be somewhat indicative of his attitude toward the practice of land surveying as will be seen from the evidence as discussed below. Consistent with the Board's Order, however, Respondent submitted several surveys which were considered to be of poor quality. The first set was returned with numerous negative comments and the third set was returned for further preparation and correction to prevent "further disciplinary action." The second set was considered to be "in substantial compliance with the terms of the [Board's] Final Order." Specifically identified for comment were surveys done by the Respondent for Mark and Betty Sivik, Carolyn Riddle, Eugenio Gonzalez, Teresa and Dane Curry, and Silvia Garcia. As to the individual surveys, the following discrepancies were noted: Sivik field notes showed no measurements made by Respondent. field notes showed no angles turned by Respondent. field notes showed no relationship to fractional corners. Riddle field notes show no E-W measurement by Respondent. field notes show no angles turned by Respondent. no plat was submitted with the survey. Gonzalez field notes do not show complete measurements by Respondent. field notes do not show angles turned by Respondent. field notes do not show relationship to fractional corners. field notes show a fence on three sides but the survey does not. Curry field notes do not show angles turned by Respondent. there is a .9 foot discrepancy as to one line between field notes and the survey with no explanation. as a result of this it cannot be determined if the survey is accurate. Garcia measurements to corners shown in field notes are not shown on survey. Respondent did not submit a plat without which it cannot be determined if the survey is complete or accurate. (Without the appropriate field notes, there is no way to tell if the survey is accurate, complete, or in accord with the legal description of the property.) In respect to all of the above surveys, none states on its face the type of survey it is. Respondent contends, in this regard, that his use of the letters "P.L.S.", (Professional Land Surveyor) after his signature indicates all are land surveys. This is not sufficient identification since professional land surveyors do various different types of surveys including land surveys, topographical surveys, reestablishment surveys, and the like. Respondent takes exception to the Board reviewer's comments about and approach to his surveys. As to the issue of angles, he contends that the minimum standards applied by the Board require only that the minimum angles shall be listed and do not require that all angles be turned in the field. He contends that the angles in question were a matter of record in his office. Mr. Cole, the Boards expert, agrees, stating it is not necessary to turn every angle but enough should be turned to insure an accurate description of the property and to verify the actual angles. There are other ways of verifying angles than turning them, but in Respondent's field notes, there was insufficient evidence to show any type of verification of the angles done by others previously. As to the discrepancies between field measurements and the legal descriptions in some cases, Respondent nonetheless contends they are all within standards. Respondent's approach here is somewhat cavalier. Any discrepancies which exist must be shown. The purpose of a survey is to show the current status of the property and it is improper and ineffective to rely solely on the previous record. To list discrepancies does not clutter up the survey nor is it likely to confuse. A failure to show them could well create major problems for a future user of the survey. The .9 foot discrepancy, described by the Respondent as well within the 1:5,000 error standard, is incorrectly described. It is more like an error of 1:200 and is, therefore, not insignificant. It should have been commented on. The survey done for the Currys can readily be classified as a topographical survey as it describes elevation in at least two places. Therefore, it should have been identified as a topographical survey on the face of it, but this is a minor discrepancy. The fence running across the back of the Gonzalez property should have been identified as such by the use of appropriate x's on the survey. It was not. Respondent has been in the private practice of surveying since he passed the state examination in February, 1976. He feels that the Board's case is based on the use of a hypothetical survey to establish standards against which his work was compared. The minimum standards set out in the statute are what, he feels, should control as they speak for themselves. He has always tried, throughout his years in practice, to protect his clients, and to his knowledge, his work has never cause anyone to lose money. He defines precision as the way that a line or angle is measured and accuracy as the manner in which the finished drawing portrays that there are or are not problems in the subject of the survey. With regard to the attack on his field notes, Respondent contends that the minimum standards merely call for field notes. Their sufficiency is determined by the standards of the practice in the community. He believes his notes contain measurements, calculations and ancillary information sufficient to show the required identifying information. The laws that govern surveyors' performance require many factors to be considered such as encroachment, senior rights, acquiescence and adverse possession, and the Respondent urges that in the interest of simplicity for the benefit of the users of the survey, it is necessary to reduce the quantity of evidence on the survey to the minimum necessary to allow it to be used effectively, not for the convenience of the state examining board. If there are no problems, then there is nothing else to show and his backup office records are adequate. Though Respondent feels the Board's criticisms of his notes are irrelevant, the better weight of the evidence is that they are not. Though Respondent contends his work in all cases exceeds the requirement for error, (1:5,000; 1:7,500; and 1:10,000 as appropriate), the error in the Curry survey shows his possible lack of understanding of the rules. He considers himself to be a mixture of the textbook and practical surveyor applying his extensive practical field experience to the textbook requirements. The evidence indicates, however, he does not always do so with the required degree of accuracy and skill. Respondent agrees with the 20 minimum standards set out in Rule 21HH- 6.003. They relate to all surveys and, he believes, should be followed. They constitute the community standard and a failure to follow them would be a failure to follow the community standards. His quarrel is not with the rule but with the agency's interpretation and alleged expansion of its own rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a registered land surveyor be suspended for one year and that upon reinstatement his license be placed on probation for five years under such terms and conditions as imposed by the Board as will insure current and continuing review of his activities within the profession. RECOMMENDED this 24th day of August, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1987. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the proposals of the parties. Petitioner's Proposed Findings of Fact (FOF). 1. Accepted in FOF 1. 2. Accepted in FOF 2. 3 - 7. Accepted in FOFs 2 and 4. 8. Accepted. 9 - 11. Incorporated in FOF 4. 12, 13. Accepted. 14, 15. Incorporated in FOF 4. 16. Incorporated in FOF 5. 17, 18. Accepted. 19, 20. Incorporated in FOF 5. 21 - 30. Incorporated in FOF 6. 31 - 33. Accepted. 34. Incorporated in FOF 7. 35 - 37. Incorporated in FOFs 8 and 9. 38, 39. Incorporated in FOF 16. 40. Redundant to Proposed FOF 2. COPIES FURNISHED: ALLEN R. SMITH, JR., EXECUTIVE DIRECTOR DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF LAND SURVEYORS 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 DAVID R. TERRY, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32301 KENNETH O. HART 3198 RIDDLE ROAD WEST PALM BEACH, FLORIDA 33406 VAN POOLE, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JOSEPH A. SOLE, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 ================================================================= AMENDED AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF PROFESSIONAL LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, DOAH CASE NO. 87-2158 vs. DPR CASE NO. 0078982 KENNETH O. HART, Respondent. /
