07-005789 John Charles Counts, Jr. vs. Board Of Professional Surveyors And Mappers Status: Closed Recommended Order on Thursday, August 14, 2008.

Summary: Petitioner made a good faith effort to comply with license renewal statutes and rules, and his failure to comply was due to an illness which justified his failure to renew.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN CHARLES COUNTS, JR., )

)

Petitioner, )

)

vs. ) Case No. 07-5789

)

BOARD OF PROFESSIONAL )

SURVEYORS AND MAPPERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on June 19, 2008, in Ocala, Florida, before Barbara J.

Staros, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Rex D. Ware, Esquire

Fowler White Boggs Banker, P.A.

101 N. Monroe Street, Suite 1090

Tallahassee, Florida 32301

For Respondent: Diane L. Guillemette, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue is whether Petitioner's application for reinstatement of his licensure as a land surveyor should be granted or denied.

PRELIMINARY STATEMENT

On November 21, 2007, Respondent, Board of Professional

Surveyors and Mappers (Board), issued a Notice of Intent to Deny

Petitioner's application for reinstatement of his Florida

professional surveyor’s license. The reason for the denial as

stated in the Notice of Intent, is that Petitioner “failed to

present evidence of a good faith effort to comply with the

license renewal statutes and rules and failed to present

evidence that rises to the level of illness or unusual hardship

that would justify the failure to renew the license.”

Petitioner timely requested an Administrative Hearing to

contest the Notice of Intent to Deny. The case was transmitted

to the Division of Administrative Hearings on or about

December 27, 2007. Three motions for continuance were granted,

and the case was ultimately heard on June 19, 2008.

The parties filed a joint Pre-hearing Stipulation on

June 12, 2008.

At hearing, Petitioner testified on his own behalf and

presented the testimony of Connie Counts and Steven Counts.

Petitioner offered Exhibits numbered 1 through 5 and 7 through

9, including the depositions of Dr. Hany Falestiny and Richard

Morrison, which were admitted into evidence. Respondent

presented the testimony of Richard Morrison. Respondent did not

offer any exhibits.

A Transcript consisting of one volume was filed on July 3,

2008. The parties timely filed Proposed Recommended Orders,

which were considered in the preparation of this Recommended

Order. All references to the Florida Statutes are to 2007

unless otherwise indicated.

FINDINGS OF FACT

Stipulated Facts

1. From January 1988 through February 1993, Petitioner was

licensed by the State of Florida as a land surveyor with license

number LS4480.

2. On March 1, 1993, Petitioner’s license was rendered

delinquent, due to nonpayment and no proof of Continuing

Education (CE) credits.

3. The next renewal period ended April 30, 1995. On

March 8, 1995, Petitioner submitted a check in the amount of

$755.00 to the Board, to cover renewal and delinquent fees.

4. The bank failed to honor that check. Petitioner

submitted payment of $792.95 on June 1, 1995. That payment was

accepted by the Board.

5. On September 16, 1998, the Department entered

Petitioner’s license as null and void in its computer.

6. After the time Petitioner’s license became null and

void, the educational requirements for licensure as a Florida

surveyor changed and Petitioner would not have qualified if

applying for the first time based on those educational

requirements.

7. Petitioner completed the following CE courses as

follows:

February 12, 1993—6 hours

February 13, 1993—6 hours

April 22, 1994—6 hours

April 23, 1993—6 hours

April 27, 1994—6 hours

June 12, 1997—6 hours

8. In 2005, the Legislature amended Section 455.271,

Florida Statutes, to allow a Board to reinstate the “null and

void” license of an applicant.

9. In September 2007, Petitioner applied for reinstatement

under the new provisions of law, paid the applicable fee and

provided a packet of information to the Board.

10. On October 11, 2007, Petitioner appeared before the

Board regarding his application for reinstatement and testified

regarding why he believed he met the requirements of the statute

to have his license reinstated. Petitioner provided the Board

with a written time-line explaining when he was licensed, when

his license became delinquent, and then null and void, and why

he believed that his illness contributed directly to his

inability to complete the continuing education requirements

earlier that would have prevented his license from becoming null

and void.

11. After questioning Petitioner, the Board voted to deny

him reinstatement and issued a Notice of Intent to Deny on

November 19, 2007, which reads in pertinent part:

Petitioner, John C. Counts, Jr., has failed

to present evidence of a good faith effort

to comply with the license renewal statutes

and rules, and failed to prevent evidence

that rises to the level of illness or

unusual hardship that would justify the

failure to renew the license.

12. During the time period in question, Petitioner

suffered from severe obstructive sleep apnea; however,

Petitioner was not diagnosed with the disease until 1999.

13. During the period that his license was null and void,

Petitioner has participated in activities related to mapping and

surveying, but only within the parameters of Section 472.003,

Florida Statutes, and with an associate licensed by the Board.

Facts based upon evidence of record

14. During the mid-1980’s, Petitioner began to notice that

he was suffering from sleepiness during the day and had

difficulty staying awake during meetings and while driving. In

1985, Petitioner was dismissed from a job he had held for six

years with a surveying/engineering firm for sleeping on the job.

15. After receiving his surveyor’s license from the Board

in 1988, he went to work as a surveyor with a company in

Gainesville, Florida. He stayed with that company for a little

over a year. He left that company because of concerns with his

driving. That is, he felt he was losing focus while making the

commute between his job in Gainesville and his home in Ocala,

and felt he actually slept through parts of the drive.

Additionally, the company was considering relocating to Orlando,

which would have made his commute even longer and more of

concern.

16. In 1989, Petitioner opened his own surveying business.

17. In the winter of 1993, Petitioner determined that he

had not acquired the required number of CE credits to renew his

license. Because of the demands of his small business, his

concerns about his driving because of drowsiness, and difficulty

paying attention in CE classes, he determined that he could not

get all the credits he needed in a timely fashion.

18. Accordingly, Petitioner closed his surveying business

and started working odd jobs. Petitioner hoped to attend

classes over time to gain the necessary CE credits to get his

license reactivated.

19. Petitioner attempted to acquire the necessary CE

credits to get his license restored. He attended and obtained

12 CE hours in March 1993. In 1994, he attended and obtained

18 CE hours from classes given near his home. However, many

courses were offered around the state and he did not feel safe

driving to seminars or courses in cities that were farther away

from home. He was having trouble staying awake during the

courses and felt that he disturbed other persons around him with

his snoring as well as not giving his instructors the respect

they deserved.

20. During this time, Petitioner was experiencing other

symptoms as well. After work, he would fall asleep if he sat

down for any length of time. He was very irritable and short

with his wife and children, and he was having more and more

difficulty getting out of bed.

21. Connie Counts is Petitioner’s wife. She recalls that

during this period of time, her husband could not stay awake

during the day and even fell asleep during meals. He gained

weight and his snoring got worse; Mrs. Counts could hear his

snoring even when she was outside the house. He had trouble

driving and often would have others drive him home. She recalls

driving in a car behind her husband’s car and watching him

swerve off the road and swerve towards the center line.

Mrs. Counts’ testimony in this regard is accepted as credible.

22. Petitioner did not go to the doctor for the symptoms

he was experiencing. During this time, neither he nor

Mrs. Counts understood that he might have a disease that would

cause these symptoms. Moreover, the Counts did not have health

insurance and only went to the doctor for specific ailments.

23. Petitioner made more attempts to get CE credits in

1997 when he completed one course for six hours of CE credit.

He slept through part of the course, disturbed other class

members, and was embarrassed by his actions.

24. During this period of time, Petitioner was not aware

of any correspondence or Internet courses available for purposes

of obtaining the necessary CE credits. The courses were most

often available in places requiring travel, which was

problematic given his concerns about driving.

25. In the fall of 1998, Petitioner was hired by Marion

County in a full-time position with health insurance benefits.

He was required to locate and go to a primary care physician.

Petitioner’s primary care physician referred him to a pulmonary

physician who is an expert in sleep disorders, Dr. Hany

Falestiny.

26. Dr. Falestiny first saw Petitioner in June 1999. He

ordered a sleep study for Petitioner; this entailed Petitioner's

going to a local hospital for the night. During the study which

took place in August 1999, Petitioner was “hooked up” to several

monitors measuring his brain waves, oxygen levels, and heart.

27. Petitioner’s condition was so severe that the sleep

study was halted halfway through the first night and he was

required to wear a continuous positive airway pressure (CPAP)

device immediately.

28. The study revealed that Petitioner’s blood oxygen

level dropped to 65, which is considered to be quite severe

desaturation, and potentially dangerous. He had an apnea

hypopnea index (AHI) rating of 84 (he stopped breathing 84 times

an hour). An AHI rating over 30 is considered severe.

29. As a result of the study, Dr. Falestiny diagnosed

Petitioner with Severe Obstructive Sleep Apnea (severe sleep

apnea).

30. Patients with severe sleep apnea, such as

Petitioner’s, often have excessive sleepiness during the day

because of the frequency that their brain gets stimulated at

night due to the patient's stopping breathing, resulting in the

inability to experience deep sleep. There is also concern that

patients with severe sleep apnea may develop other serious

health conditions such as stroke, heart attacks, or related

problems.

31. Severe sleep apnea can cause one to fall asleep while

driving. After being diagnosed with severe sleep apnea,

Dr. Falestiny informed Petitioner that if he ever ceased

treatment for the disease, Dr. Falestiny would report him to the

driver’s license agency.

32. Because of the nature and severity of his condition,

Petitioner continues to use the CPAP device and continues to be

a patient of Dr. Falestiny.

33. The preponderance of the evidence establishes that

while Petitioner did not receive a diagnosis of severe sleep

apnea until 1999, he experienced symptoms consistent with the

disease as far back as the mid-1980’s.

34. Petitioner made a good-faith effort to comply with the

license renewal statutes and rules.

35. Petitioner’s failure to comply with the license

renewal statutes and rules was because of illness, i.e. , severe

sleep apnea.

36. Mr. Richard Morrison is Executive Director of the

Board. Mr. Morrison acknowledged that Petitioner provided all

information to the Board required by the applicable Board Rule.

In Mr. Morrison’s words, “He gave them all the information in

the Rule. From that point on it was the Board’s discretion as

to whether he made a good-faith effort or not.”

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding in accordance with Sections 120.569 and 120.57(1),

Florida Statutes.

38. The proceeding before the Division is de novo .

§ 120.57(1)(k), Fla. Stat.

39. In licensing cases, the burden is on the applicant to

demonstrate entitlement to the requested license by a

preponderance of the evidence. Department of Transportation v.

J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981);

Balino v. Department of Health and Rehabilitative Services ,

348 So. 2d 349 (Fla. 1st DCA 1977). In this instance,

Petitioner, as an applicant for reinstatement, bears the burden

of proof.

40. In the joint Pre-hearing Stipulation and in the

Proposed Recommended Orders, the parties present argument as to

whether the Board abused its discretion in its decision which

resulted in its Intent to Deny letter. This argument is

misplaced at this juncture. Because this is a de novo

proceeding, it is intended to formulate final agency action, not

to review action taken earlier and preliminarily. Haines v.

Department of Children and Families , 983 So. 2d 602,606 (Fla.

5th DCA 2008) citing Department of Transportation v. J.W.C.

Company, Inc. , supra . Any review of the Board’s discretion will

be left to any appellate judicial review. See § 120.68(7)(e)1.,

Fla. Stat.

41. Section 455.271, Florida Statutes, reads in pertinent

part as follows:

455.271(6)(b) Notwithstanding the provisions

of the professional practice acts

administered by the department, the board, or

the department if there is no board, may, at

its discretion, reinstate the license of an

individual whose license has become void if

the board or department, as applicable,

determines that the individual has made a

good faith effort to comply with this section

but has failed to comply because of illness

or unusual hardship . The individual must

apply to the board, or the department if

there is no board, for reinstatement in a

manner prescribed by rules of the board or

the department, as applicable, and shall pay

an applicable fee in an amount determined by

rule. The board, or the department if there

is no board, shall require that such

individual meet all continuing education

requirements prescribed by law, pay

appropriate licensing fees, and otherwise be

eligible for renewal of licensure under this

chapter.

42. Florida Administrative Code Rule 61G17-10.001 is

entitled “Reinstatement of Null and Void License” and sets forth

the information that a person seeking reinstatement must provide

to the Board.

43. The Board’s Executive Director acknowledged that

Petitioner presented all the information required by the above

Rule to the Board. The Notice of Intent to Deny was based on

two things: that Petitioner failed to present evidence of a

good faith effort to comply with the license renewal statutes

and rules and that he failed to present evidence that rises to

the level of illness that would justify the failure to renew the

license. 1/

44. The preponderance of the evidence established that

Petitioner made a good-faith effort to comply with the license

renewal statutes and rules, and that his failure to comply was

due to an illness, i.e., severe obstructive sleep apnea, which

justified his failure to renew.

RECOMMENDATION

Upon consideration of the facts found and the conclusions

of law reached, it is

RECOMMENDED:

That a final order be entered granting Petitioner's

application for reinstatement of his license as a land surveyor.

DONE AND ENTERED this 14th day of August, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of August, 2008.

ENDNOTE

1/ Other reasons for denial of Petitioner’s application for

reinstatement were suggested in Respondent’s Proposed

Recommended Order. However, only those reasons cited in the

Notice of Intent to Deny will be addressed in this order.

COPIES FURNISHED :

Rex D. Ware, Esquire

Fowler White Boggs Banker, P.A.

101 N. Monroe Street, Suite 1090

Tallahassee, Florida 32301

Diane L. Guillemette, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Richard Lee Morrison, Executive Director

Board of Professional Land

Surveyors and Mappers

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.