05-003232PL Department Of Business And Professional Regulation vs. Charles Edward Martin Status: Closed Recommended Order on Wednesday, December 21, 2005.

Summary: Sexual battery does not relate to the practice of surveying and mapping, and Respondent`s crime did not relate factually to his practice of surveying.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3232PL

)

CHARLES EDWARD MARTIN, )

)

Respondent. )

)

RE COMMENDED ORDER

Pursuant to n otice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on November 1, 2005, by video

teleconference with sites in Pensacola and in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Wilson Jerry Foster, Esquire

Law Offices of Wilson Jerry Foster

1342 Timberlane Road, Suite 102 - A

Tallahassee, Florida 32312 - 1775

STATEMENT OF THE ISSUE

The i ssue presented is whether Petitioner proved the

allegations contained in the Administrative Complaint filed

against Respondent , and, if so, what disciplinary action should

be taken against him, if any.

PRELIMINARY STATEMENT

On May 2, 2002, Petitioner De partment of Business and

Professional Regulation (Department) issued an Administrative

Complaint against Respondent Charles Edward Martin alleging that

he had violated the statutes regulating his conduct as a

licensed professional surveyor and mapper, and Respondent timely

requested an administrative hearing regarding the allegations in

that Administrative Complaint. On September 6, 2005, over three

years later, this cause was transferred to the Division of

Administrative Hearings to conduct the evidentiar y proceeding.

The Department presented the testimony of Tom Bishop and

Colleen C. Presnell. The Respondent testified on his own

behalf. Additionally, the Department's Exhibits numbered 1 - 4

and the Respondent's Exhibits numbered A - C were admitted in

evid ence.

Both parties submitted proposed recommended orders after

the final hearing in this cause. Those documents have been

considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto and since 1979, Respondent

h as been licensed by the State of Florida as a professional

surveyor and mapper , having been issued license number LS 3463.

He and his wife have owned Southern Surveying since June 1990,

and he is and has been actively performing surveying work.

2. Respo ndent has been married to his present wife since

1985. He and his wife have five children between them: two

from her previous marriage, two from his previous marriage, and

one from their marriage.

3. In Spring 1989 , Respondent was arrested and charged

with sexual battery on a person 12 years of age or older but

less than 18 years of age. The victim was his wife's daughter.

Respondent was immediately separated from his family, with his

wife and two stepdaughters moving to a nearby town.

4. Responde nt entered a plea of nolo contendere to sexual

battery on November 9, 1989, and was incar cerated in the county

jail for eight months. He was only permitted to leave the jail

when his wife picked him up and took him to family counseling on

Tuesday nights.

5. After his release from the county jail, he was under

community control for one year as part of his probation.

Pursuant thereto, he reported when he left his home, where he

was going, and when he returned. He was subject to drug testing

and checked in with his probation officer every Wednesday.

6. Thereafter, he was subject to regular probation

conditions, which included checking in with his probation

officer once a month and obeying the law. His total period of

probation, including the communit y control portion, was for 12

years. He successfully completed his probation on November 8,

2001, 12 years from the date he entered his plea. During those

years, he was never charged with probation violation.

7. An Order of Modification of Probation wa s entered on

February 12, 1993, nunc pro tunc November 24, 1992. The Order

modified one of the Respondent's conditions of probation which

had forbidden contact with the victim so that Respondent could

have supervised contact with the victim who could resi de in

Respondent's home. In other words, the Order allowed the family

to be re - united.

8. Some months before he was incarcerated, Respondent

became involved with the Impact Program relating to the family

counseling he and his family underwent. While in the Impact

Program he learned the importance of being a protector to his

daughters, who are now grown and on their own. He wrote a

letter to his victim apologizing. He took responsibility for

his actions. He was in the Program for a total of four yea rs.

9. Also in 1989, just before his arrest, he "accepted

Jesus." He subsequently began biblical studies, receiving

certificates of completion of courses of study. He is a deacon

in his church.

10. He is actively involved in prison ministries, su ch as

Interfaith Jail Ministries, Inc., an organization for which he

is also on the Board of Directors. He is a member of the

Christian Motorcyclists Association and, with other members,

travels to prisons and jails around the nation, showing the

inmates their motorcycles and then talking to the inmates about

Jesus Christ.

11. There is no factual relationship per se , direct or

otherwise, between the practice of surveying and sexual battery.

Similarly, there is no factual relationship, direct or

otherwis e, between Respondent's crime and his practice of

surveying or his ability to practice surveying.

12. Respondent has shown remorse for his conduct and has

tried to make amends. The extensive 12 - year probation which he

successfully completed is evidence of his successful

rehabilitation.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), Fla. Stat.

14. The Administrative Complaint filed in this cause

alleges that Respondent has violated Sections 455.227(1)(c) and

472.033(1)(d), Florida Statutes, in that sexual battery relates

to the practice of land surveying due to the special trust

placed in land surveyors by virtue of their exemption from

tr espass laws to the extent set forth in Section 472.029,

Florida Statutes.

15. In this revocation of licensure proceeding the

Department bears the burden of proving its allegations by clear

and convincing evidence. Dept. of Banking & Finance, Div. of

Se curities & Investor Protection v. Osborne, Stern & Co. , 670

So. 2d 932 (Fla. 1996). The Department has failed to do so.

16. In 1989 when Respondent entered his plea of nolo

contendere , Section 455.227(1)(c), Florida Statutes, which

applies to all profess ions and occupations licensed by the

Department, authorized the Department to take disciplinary

action against a licensee convicted of a felony which relates to

the practice of his profession. The test of "relates" existed

prior to 1989 and still exists a lthough the surrounding language

has been expanded.

17. However, in 1989 , Chapter 472, Florida Statutes, under

which Respondent is regulated in his practice of surveying and

mapping, was revived and re - adopted after review pursuant to the

Regulatory Sun set Act. As re - adopted and as in effect when

Respondent entered his plea of nolo contendere , Section

472.033(1)(d), Florida Statutes, authorizes disciplinary action

against a licensee for entering a plea of nolo contendere to a

crime which directly relate s to the practice of surveying or

mapping or the ability to practice surveying or mapping.

Respondent, therefore, is subject to the higher standard of

directly related to his profession rather than the lower

standard of simply related which applies, in ge neral, to many

professions and occupations. Moreover, that a crime must be

directly related to surveying and mapping to warrant

disciplinary action, rather than be just related, is the latest

expression of legislative will as to the standard applicable to

surveyors and mappers .

18. Whether a crime directly relates to a regulated

practice or the ability to practice raises questions of law and

fact. See Michael Spuza, M.D. v. Dept. of Health , 838 So. 2d

676 (Fla. 2d DCA 2003). As set forth above, there is no factual

relationship between Resp ondent's crime of sexual battery and

the practice of surveying and mapping or his ability to practice

surveying and mapping.

19. In considering whether a legal relationship exists

between the crime of sexual battery and the practice of

surveying, the definition of surveying and mapping offers no

connection. Section 472.00 5(4), Florida Statutes, includes the

following descriptions of surveying and mapping: the

application of special knowledge of the principles of

mat hematics, the act of measuring and locating lines and

elevations, interpreting the facts of size and shape and

topography, the monumentation of property boundaries, the

preparation of plans showing existing improvements after

construction , and the preparat ion of subdivision planning maps

and record plats. None of these activities involves

unacceptable sexual activity. Accordingly, a s to a legal

relationship, direct or i ndirect, no statute establishes such a

relationship , and no case law has been cited or found .

20 . The Department argues that the relationship arises by

virtue of Section 472.029(1), Florida Statutes, which authorizes

surveyors and mappers to go on, over, and upon the lands of

others in conjunction with making surveys or maps or locating or

setting monuments. The statute specifically provides that such

entry onto land does not constitute trespass. The Depar tment

argues that sexual battery is directly related to surveying due

to the exemption from trespass provided by this statutory

provi sion. In furtherance of its argument, the Department

suggests that the exemption covers trespass into dwellings

rather than simply onto land. Such an interpretation is

contrary to the plain wording of the statute which authorizes a

licensee to go upon an other's land when necessary to perform

surveying work and does not authorize entering buildings,

dwellings, or structures.

21 . Thus, Respondent's sexual battery is not related or, a

fortiori , directly related factually or legally to the practice

of survey ing or mapping o r to hi s ability to practice surveying

or mapping. Even if it were directly related, Respondent has

clearly demonstrated that he is entitled to remain licensed by

both the passage of time and his rehabilitation and that no

disciplinary act ion is needed to protect the public from harm.

22 . As to the passage of time, it has been 16 years since

Respondent entered his plea, and there is no suggestion in this

record that he has repeated his criminal conduct. He

successfully completed his 12 - ye ar period of probation four

years ago. Further, the record reveals that, except during the

time that he was in jail, Respondent has been actively engaged

in surveying and mapping activities without incident, a

conclusion supported by the Administrative Co mplaint in this

cause which charged Respondent with statutory violations based

only upon his 1989 plea and contained no subsequent or

additional allegations of wrongful conduct.

23 . As to Respondent's rehabilitation, the testimony is

uncontroverted that R espondent accepted responsibility for his

crime, attended family counseling for four years, wrote a formal

letter of apology to his victim, was re - united with his family

pursuant to judicial approval, began extended religious studies,

became a deacon in hi s church, and participates in a prison

ministry nation - wide. Respondent has clearly and convincingly

demonstrated rehabilitation.

24 . The seriousness of the crime of sex ual battery is not

overlooked in this Recommended Order. Nor is the possibility

tha t the factual circumstances surrounding the c rime of sexual

battery could not only relate but directly relate to the

practice of surveying and mapping and/or the ability to practice

surveying and mapping. However, the facts in this case do not

establish s uc h a relationship .

25 . Section 472.033, Florida Statutes, which sets forth

the grounds for disciplinary action against surveyors and

mappers, provides that disciplinary action against a licensee

found guilty of any of the enumerated statutory provision s,

including the one at issue in this proceeding, is discretionary

with the Board of Professional Surveyors and Mappers and not

mandatory. § 472.033(2), Fla. Stat. Hence, even if the Board

were to determine that Respondent's crime d irectly related to

his practice, the Board is authorized to determine that no

disciplinary action should be taken against him based upon the

passage of time and his rehabilitation .

26. Even if the Board were to determine that a direct

relationship, factual or legal, exists be tween sexual battery

and surveying, the disciplinary recommendation contained in the

Department's proposed recommended order filed in this cause is

contrary to the Board's disciplinary guidelines. The Department

has recommended that Respondent's license be revoked, that he be

fined $1,000, and that he pay $1,382.04 in costs.

27. However, the Board's disciplinary guidelines found in

Florida Administrative Code Rule 61G17 - 2.0015(2)(d) provides

that for a violation of Section 472.033(1)(d), Florida Statu tes,

a licensee shall be penalized for the first offense with a fine

of $250, as a minimum penalty, and a fine of $500 and suspension

to be followed by a term of probation, as a maximum penalty.

Although Sec tion (4) of that Rule authorizes the Board to

de viate from the guidelines based upon aggravating or mitigating

evidence, none of the enumerated items of aggravating evidence

was offered at the final hearing in this cause, but one

enumerated item of mitigating evidence was, i.e. , the

Respondent's efforts at rehabilitation, and those efforts are

set forth in this Recommended Order.

28. Accordingly, if the Board should find a factual or

legal direct relationship between sexual battery and the

practice of surveying and mapping, the minimum fine of $250 for

Respondent's first offense should be mitigated by the passage of

time and his rehabilitation, and the Board should exercise its

discretionary authority to impose no discipline against

Respondent under the facts of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered dismissing the

Administrative Complaint f iled against Respondent in this cause.

DONE AND ENTERED this 21st day of December, 2005, in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

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 21st day of December, 2005.

COPIES FURNISHED :

John Knap, Executive Director

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Brian A. Higgins, Esquire

Department of Business and

Professional Regulati on

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Wilson Jerry Foster, Esquire

Law Offices of Wilson Jerry Foster

1342 Timberlane Road, Suite 102 - A

Tallahassee, Florida 32312 - 1775

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the ri ght 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.