14-004291 Department Of Agriculture And Consumer Services vs. John C. Minder Status: Closed Recommended Order on Wednesday, February 11, 2015.

Summary: Petitioner failed to prove the allegations. Recommend dismissal of the Amended Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND

CONSUMER SERVICES,

Petitioner,

vs. Case No. 14 - 4291

JOHN C. MINDER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to not ice, a final hearing was held in this case

before Lynne A. Quimby - Pennock, an Administrative Law Judge of

the Division of Administrative Hearings (Division), on

December 4, 201 4 , i n Sarasota, Florida.

APPEARANCES

For Petitioner: Patrick Francis Creehan, Esquire

Department of Agriculture and

Consumer Services

2005 Apalachee Parkway

Tallahassee, Florida 32301

For Respondent: H. Richard Bisbee, Esquire

Law Office of H. Richard Bisbee, P.A.

Suite 206

1882 Capital Circle, Northeast

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Respondent, John C. Minder , committed the v iolations

alleged in the Amended Administrative Complaint issued by the

Department of Agriculture and Consumer Services (Pe titioner) on

November 17, 2014 ; and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

In December 2012, Petitioner issued an Administrative

Complaint (AC) 1 / against Respondent alleging violations of the

Board of Professional Surveyors and Mappers Ó (Board) practice

act. On March 13, 2013, this AC was resolved via a ÐFinal Order

Approving Settlement Stipulation.Ñ The terms an d conditions were

set forth in the Settlement Stipulation , which included a stay of

a suspension pending the submission of surveys that were

acceptable to the BoardÓs Probation Review Committee

(Committee). 2 / The Committee is composed of three members of the

Board.

Respondent submitted a list from which six surveys were

selected, and he provided the surveys . On November 6, 2013, the

BoardÓs Committee met and deliberated RespondentÓs survey

submissions. The Committee voted Ðto deny the six surveys.Ñ

Resp ondent was told the process would start over and Respondent

would be contacted for six additional surveys.

Respondent submitted a list from which the second set of six

surveys w ere selected, and he provided the surveys . On

February 19, 2014, the Committe e met and deliberated RespondentÓs

second set of survey submissions. The Committee voted Ðnot to

accept the surveys submitted for the second roundÑ and to Ðlift

the stay on Mr. Minder until he takes and passes the Florida

Jurisdiction.Ñ

The ÐOrder Lifting [RespondentÓs] Stay of SuspensionÑ was

executed on March 14, but not rendered until March 17.

In April 2014, Respondent appealed the BoardÓs Order to the

Second District Court of Appeal (Second DCA) . The Second DCA

relinquished jurisdiction 3 / for a heari ng to be held on the

allegations that Respondent failed to satisfactorily comply with

the Final Order.

On June 2, RespondentÓs counsel advised Petitioner

(in part):

Lastly, the basic point of Mr. MinderÓs

appeal as you know is his entitlement to a

120.60 f ormal hearing prior to the BoardÓs

entry of its Order Lifting Stay to challenge

the underlying decisions of the Probation

Committee as adopted by the Board. I would

anticipate the Appellate Court remanding the

case eventually for that purpose and in the

i nterest of judicial economy and litigation

costs would appreciate your efforts

discussing with your client whether the Board

would be amenable to entering into a

stipulation to remand the case pending appeal

for that purpose.

On September 15, Petitioner s ubmitted to the Division a

transmittal letter that provided the following:

Enclosed please find the following documents

relating to the above case:

1. March 13, 2014 Order Lifting Stay of

Suspension of John C. Minder, professional

surveyor and mapper.

2. A letter dated June 2, 2004 [ sic ] from

Richard Brisbee [ sic ] , Esq., counsel for John

C. Minder requesting a 120.60 formal hearing

to challenge the underlying decisions of the

Probation Committee as adopted by the Board

of Professional Surveyors and Mappe rs.

Please assign an administrative law judge to

hear this case.

The hearing was noticed to be held on November 5 and 6,

2014. Following a Joint Motion to Continue, the hearing was

rescheduled for December 4 and 5, 2014.

On October 3, Respondent filed a ÐMotion to Dismiss;

Alternatively, Motion for More Definite Statement,Ñ setting forth

RespondentÓs position and seeking an order requiring Petitioner

to prepare a detailed administrative complaint.

On November 17, a ÐCorrectedÑ Amended Administrative

Comp laint (Complaint) was filed with the Division. The Complaint

alleged Respondent violated section 472.035(1)(h) , Florida

Statutes, by:

violating a lawful order of the board by his

unsuccessful completion of probation as

imposed by the Final Order Approving

Settlement Stipulation filed March 20, 2014

in the following ways; [ sic ]

(a) by failing to produce required

documentation under the Rules and under the

Settlement Stipulation and/or;

(b) by failing to complete the surveys in

compliance with Minimum Te chnical Standards.

On November 25, 2014, Respondent filed a Ð Motion to Continue

December 4, 2014 Hearing Date. Ñ The m otion was denied.

RespondentÓs p re - hearing statement included another request for

a continuance. At the start of the hearing, Responde nt withdrew

the request for a continuance, and the parties proceeded to

present the case.

Petitioner presented the testimony of John Stanley Roberts ,

the e xecutive d irector of the Board . PetitionerÓs Exhibits 1,

3, 4 / and 4, and Respondent's Exhibit 1 were admitted into

evidence. Respondent did not present any witnesses.

At the conclusion of the hearing, the parties requested that

the post - hearing submissions be filed within 15 days of the

filing of the hearing transcript. On December 30, the one - volume

T ranscript of the final hearing was filed with the Division. By

Notice of Filing Transcript entered January 6, 2015, the parties

were informed that their proposed recommended orders (PROs) were

to be filed on or before January 29. Both parties timely file d a

PRO, and each has been considered in entering this Recommended

Order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2013 codification.

FINDING S OF FACT

1. Petitioner is the state agency charged with the

licensing and reg ulation of professional mappers and surveyors

pursuant to chapter 472 , Florida Statutes.

2. At all times material, Respondent was a licensed

professional surveyor and mapper in Florida, having been issued

Florida license number LS 4071.

3. In December 2 012, a three - count AC was issued to

Respondent alleging violations of ÐformerÑ sections

472.0351(1)(g) , and (h), Florida Statutes (2012), through

violating Florida Administrative Code Rules 5J - 17.052(2)(a)8.d.,

and 5J - 17.052(2)(c)1.a. 5 /

4. Respondent Ðfre ely and voluntarilyÑ entered into a

Settlement Stipulation with Petitioner that resolved the AC.

That Settlement Stipulation contained the following provision at

paragraph 11(e):

Respondent shall provide the Board with a

list of all signed and sealed surv eys

containing a minimum of six (6) surveys which

were performed by Respondent within 120 days

of the Final Order. The BoardÓs Probation

Chair will randomly select (6) of

RespondentÓs signed and sealed surveys for

review from the survey list submitted by

Respondent. Within seven (7) calendar days 6 /

of being notified by the Board of the surveys

which were selected for review, Respondent

shall have post - marked and submitted to the

Board Office signed and sealed surveys for

the surveyed properties selected f or review,

along with copies of the relevant field

notes, the relevant full size record plats,

all measurement and computational records,

and all other documents necessary for a full

and complete review of the surveys, in

accordance with Florida Administra tive Code

Rules 5J - 17.016, 5J - 17.083, and 5J - 17.085.

Respondent must attend the Probation

Committee meeting at which the surveys are to

be reviewed. Failure to comply with this

provision may result in Respondent being

referred to the Department for non - c ompliance

with the final order of the Board, and the

Board may lift the stay of suspension.

5. Respondent provided a list of his signed and sealed

surveys for review. In accordance with the BoardÓs procedures,

the Board chair randomly selected six surve ys for the Committee

to review. Mr. Roberts provided two surveys to each Committee

member for their individual review.

6. Respondent admits he appeared before the November 6,

2013, Committee meeting. The excerpt transcript of the

November 6 Committee m eeting recorded a discussion between the

Committee members and Respondent. It further recorded that the

Committee voted to Ðdeny the [RespondentÓs] six surveys.Ñ

7. The excerpt transcript of the November 7, 2013 , Board

meeting , aside from the cover page indicating that it involved

Respondent (ÐIN RE: JOHN C. MINDERÑ), fails to specifically

identify Respondent or the action that the Committee wished to be

directed towards him. 7 / Further, the transcript fails to reflect

the actual vote taken by the Board, as the recording and

transcript stopped before the vote was recorded.

8. Respondent provided a second list of all his signed and

sealed surveys for review. The Board chair randomly selected six

new surveys for the Committee to review. Mr. Roberts provid ed

two surveys to each Committee member for their individual review.

Respondent admits he appeared before the February 19, 2014 ,

Committee meeting. 8 /

9. The excerpt transcript of the February 19, 2014 ,

Committee meeting recorded another discussion betwe en the

Committee members and Respondent. It further recorded that the

Committee voted not to accept RespondentÓs Ðsecond roundÑ of

surveys, and to lift the stay on RespondentÓs license suspension

until he Ðtakes and passes the Florida Jurisdiction.Ñ

10. The excerpt transcript of the February 2 0 Board meeting

reflects that the Committee reported to the Board:

John Minder appeared with a second set of

surveys. They were denied. He must take and

pass the Florida jurisdiction portion of the

State exam. 9 /

11. The BoardÓs Order Lifting Stay of Suspension, rendered

on March 17, 2014, in pertinent part, provide s the following:

THEREFORE, IT IS HEREBY ORDERED AND ADJUD G ED:

1. The report and recommendation by the

Committee is hereby adopted.

2. RespondentÓs license is hereby SUSPENDED.

3. If the Respondent files a written

Petition for Reinstatement in conformity with

the applicable administrative Rules

(including but not limited to Rules 5J - 17.083

and 5J - 17.085, Fla. Admin. Code,) then the

Board may consid er the Petition and may

reinstate the license.

The CommitteeÓs report only stated that Respondent Ðmust take and

pass the Florida jurisdiction portion of the State exam.Ñ There

is no Committee recommendation of lifting the stay of suspension

or a suspens ion of RespondentÓs license.

12. Mr. Roberts was the only person to testify at the

hearing. Mr. Roberts is not and never has been a licensed

surveyor or mapper. His discussion of the probation process was

helpful; however , he did not provide any direct testimony

supporting the Complaint. His hearsay testimony cannot support a

finding of fact.

13. Although Mr. Roberts testified to what he saw

Respondent provide and what the Committee members saw, his

testimony cannot support the allegations that the sur veys

Respondent submitted were not in compliance with Minimum

Technical Standards. There was no credible expert testimony

provided to support the Petitioner Ós allegations.

14. Further, when asked the following : ÐAnd at that

[General Board] meeting was a decision made to enter an order

lifting a stay of suspension upon Mr. MinderÓs license ? Ñ

Mr. Roberts responded: ÐTo the best of my recollection, the

Board decided and voted unanimously to lift the stay of

suspension on Mr. MinderÓs license.Ñ The Board t ranscript does

not substantiate that recollection.

15. Petitioner did not prove that RespondentÓs surveys

failed to meet minimum standards.

CONCLUSIONS OF LAW

1 6 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matt er of this

proceeding. § 120.57(1), Fla. Stat.

1 7 . The Department of Agriculture and Consumer Services ,

Board of Professional Surveyors and Mappers , is the state agency

charged with regulating the practice of surveying and mapping

pursuant to section 20. 14 and c hapter 472.

1 8 . This is a penal proceeding against RespondentÓs license

brought pursuant to section 472.0351, Florida Statutes. It is

well - established that in penal disciplinary proceedings, the

P etitioner has the burden to prove the alleged viol ations by

clear and convincing evidence. Ferris v. Turlington , 510 So. 2d

292, 294 (Fla. 1987). See In re Henson , 913 So. 2d 579, 590

(Fla. 2005); see also Dep't of Banking & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932, 935 (Fla. 1996).

1 9 . The clear an d convincing evidence standard 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 lacking in

confusion as to the facts in issue. The

evidence must be of such a 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.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

20 . Rule 5J - 17.085 (2) provides in pertinent part:

Upon receipt of the signed and sealed surveys

and other documents by the Board, either a

surveying and mapping consultant selected by

the Board or a member of the Board shall

conduct a review of the surveys supplie d by

the licensee and provide an evaluation report

to the Board for review, with all costs

associated with said review and report paid

to the consultant or the Board by the

licensee.

2 1 . The Board failed to meet its burden of proof. Although

the evidenc e establishes that Respondent entered a settlement

stipulation with conditions, and a Board Final Order was entered,

the evidence was not clear and convincing that RespondentÓs

submissions were below minimum technical standards.

RECOMMENDATION

Based upon t he foregoing Findings of Fact and C onclusions of

Law, it is RECOMMENDED that the Board of Professional Surveyors

and Mappers issue a final order dismissing the Complaint.

DONE AND ENTERED this 11th day of February , 2015 , in

Tallahassee, Leon County, Flori da.

S

LYNNE A. QUIMBY - PENNOCK

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.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of February , 2015 .

ENDNOTE S

1 / This Administrative Complaint was issued in Department of

Agriculture and Consumer Services, Case Number 1202 - 05065.

2 / The terms of the Settlement Stipulation also included:

Respondent would not violate the practice

act; Respondent would pay a fine and the

costs within 90 days; and his license was

suspended, however , the suspension was stayed

pending RespondentÓs compliance with the

terms of probation.

3 / The undersigned was n ot provided a copy of the CourtÓs Order;

however , the parties agree that the Division has jurisdiction to

hear this case.

4 / Exhibits 1 and 3 were admitted over objection.

5 / The initial AC is not the basis of this case, and no findings

of fact or conclusions of law will be made regarding it.

6 / RespondentÓs counsel raised a question about the seven days

versus the five days allocated by Board rule ; however, Respondent

was not charged with a failure to tim ely submit his surveys or

the follow - up documentation. There is no prohibition for the

parties to agree on a different schedule.

7 / The excerpt transcript of the November 6 and 7 Board meeting:

PROBATION REVIEW COMMITTEE REPORT

BOARD OF PROFESSIONAL SU RVEYORS AND MAPPERS

EXCERPTS FROM PROCEEDINGS

PROBATION REVIEW COMMITTEE

IN RE: JOHN C. MINDER

________________________________________

(PAGES 1 THROUGH 6)

DATE: NOVEMBER 6, 2013 and

NOVEMBER 7, 2013

TRANSCRIPT OF AUDIO RECORDING

EMBASSY SUITES WEST PALM BEACH Î CENTRAL

BANYAN ROOM

1601 BELEVEDERE ROAD

WEST PALM BEACH, FL 33406

________________________________________

AUDIO TRANSCRIBED BY:

ANDREA KOMARIDIS

COURT REPORTER

PREMIER REPORTING

114 5TH AVENUE

TALLAHASSEE, FLORIDA

(850) 894 - 0828

[Page 2 lists t he persons attending the

meeting; the transcription starts on page 3.]

[BOARD] CHAIRPERSON: Probation committee,

Howard Ehmke.

MR. EHMKE: The probation committee met

earlier today. On the docket we had a

request for approval for delegating authority

t o the executive director regarding non -

compliance of probationers.

It was approved by the committee.

We had one case of non - compliance, which we

continued to stay.

We had one compliance check; no action taken.

We had two sets of survey reviews -- first -

survey review s . Both cases were denied. We

had two set s of second - survey reviews, which

were both approved.

MR. ROBERTS: If IÓm not mistaken -- sorry,

Mr. EHMKE: The one case of non - compliance.

MR. EHMKE: We continued to stay.

MR. ROBERTS: No, w e actually lifted the

stay.

MR. EHMKE: We did?

MR. ROBERTS: Right? Lifted the stay --

UNIDENTIFIED FEMALE SPEAKER: Which one?

Who?

MR. ROBERTS: Lifted the stay of suspension.

UNIDENTIFIED FEMALE SPEAKER: For who?

MR. ROBERTS: For McMillen. A nd --

UNIDENTIFIED FEMALE SPEAKER: Yeah, Mr. Krick

motioned to lift the stay and open a new

case.

MR. ROBERTS: Opened a new case for failure

to abide by complied order.

MR. EHMKE: Okay. IÓm sorry.

MR. ROBERTS: Right. Right. Okay. I just

wanted to make sure --

MR. EHMKE: I appreciate it.

MR. ROBERTS: -- weÓre clear.

MR. EHMKE: Recommend that the Board approve the

actions of the probation committee.

CHAIRPERSON: Second?

MR. KRICK: IÓll second that.

CHAIRPERSON: Seconded by Mr. Krick.

U NIDENTIFIED FEMALE SPEAKER: And approved? Howard

motioned it?

CHAIRPERSON: Howard motioned it.

UNIDENTIFIED FEMALE SPEAKER: (Whispering.) Is that

okay?

CHAIRPERSON: I think itÓs okay. ItÓs part of that

committee.

UNIDENTIFIED FEMALE SPEAKER: Tha tÓs why I was asking

if it was okay.

CHAIRPERSON: ItÓs okay. Okay. We have a motion and a

second. All in favor, signify by --

(End of recording.)

8 / Respondent took issue with the composition of this C ommittee,

claiming that its composition was Ðsub stantially alteredÑ in its

make - up. State boards are made up of appointed volunteers who

give of their time and expertise to support their chosen field or

area of interest. No testimony or evidence was adduced to

support a finding that there were any irr egularities in the

composition of the Committee .

9 / The excerpt transcript of the February 19 and 20 Board

meeting:

GENERAL BUSINESS MEETING

BOARD OF PROFESSIONAL SURVEYORS AND MAPPERS

EXCERPTS FROM PROCEEDINGS

PROBATION COMMITTEE REPORT

IN RE: JOHN C. MINDER

___________________________________

(PAGES 1 THROUGH 5)

DATE: FEBRUARY 19, 2014 and

FEBRUARY 20, 2014

TRANSCRIPT OF AUDIO RECORDING

MARRIOTT MIAMI DADELAND

9090 SOUTH DADELAND BOULEVARD

MIAMI, FL 33156

_______________________________________ _

AUDIO TRANSCRIBED BY:

ANDREA KOMARIDIS

COURT REPORTER

PREMIER REPORTING

114 5TH AVENUE

TALLAHASSEE, FLORIDA

(850) 894 - 0828

[Page 2 lists the persons attending the

meeting; the transcription starts on page 3.]

[BOARD] CHAIRPERSON: Probation committee

report.

MR. KRICK: The probation review committee

met yesterday on the 19th.

MR. ROBERTS: For a very long time.

(Laughter.)

MR. KRICK: David McMillen appeared,

petitioned for reinstatement of his stay of

suspension. That was approved.

John Minder appeared with a second set of

surveys. They were denied. He must take and

pass the Florida jurisdiction portion of the

State exam.

* * *

ThatÓs it.

MR. TALBOTT: I make a motion we accept the

probation committeeÓs report.

MR. FUSCO: I second t hat.

CHAIRPERSON: We have a motion and a second.

Any other discussion? All in favor, signify

by saying aye.

UNANIMOUS SPEAKERS: Aye.

CHAIRPERSON: Opposed? Motion carries.

(End of recording.)

COPIES FURNISHED:

H. Richard Bisbee, Esquire

Law Offic e of H. Richard Bisbee, P.A.

Suite 206

1882 Capital Circle, Northeast

Tallahassee, Florida 32308

(eServed)

Patrick Francis Creehan, Esquire

Department of Agriculture and

Consumer Services

2005 Apalachee Parkway

Tallahassee, Florida 32301

(eServed)

L orena Holley, General Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street , Suite 520

Tallahassee, Florida 32399 - 0800

(eServed)

Honorable Adam Putman

Commissioner of Agriculture

Department of Agriculture and

Consumer Servi ces

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 08 1 0

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 Ord er should be filed with the agency that

will issue the Final Order in this case.