21-001019PL Florida Board Of Professional Engineers vs. Earl E. Henry, P.E. Status: Closed Recommended Order on Wednesday, June 16, 2021.

Summary: Respondent is guilty of violating ? 471.033(1)(k), Fla. Stat., by not complying with a final order of the Board in a prior disciplinary case, which was affirmed on appeal by PCA opinion. Recommend suspension followed by probation, $1,000 fine, and costs.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

F LORIDA B OARD OF P ROFESSIONAL

E NGINEERS ,

Petitioner ,

Case No. 21 - 1019PL

vs.

E ARL E. H ENRY , P.E. ,

Respondent .

/

R E COMMENDED O RDER

A disputed - fact evidentiary hearing was held by Zoom video conference on

April 23 , 2021, before Administrative Law Judge Elizabeth W. McArthur of

the Division of Administrative Hearings (DOAH).

A PPEARANCES

For Petitioner: J ohn Jefferson Ri mes, Esquire

Florida Board of Professional Engineers

Department of Business

and Professional Regulation

2639 North Monroe Street , Suite B - 112

Tallahassee, Florida 32303

For Respondent: Earl E. Henry, P.E. , pro se

6880 52nd Street North

Pin ellas Park, Florida 33781

S TATEMENT OF T HE I SSUE S

At issue in this case is w hether Respondent violated section 471.033(1)(k),

Florida Statutes, by violating a F inal O rder previously entered by Petitioner

in a prior disciplinary case ; and, if so, what pen alty should be imposed for the

violation .

P RELIMINARY S TATEMENT

On January 29, 2021, the Florida Engineers Management Corporation

(FEMC), on behalf of Petitioner Florida Board of Professional Engineers

(Petitioner or Board), issued an Administrative Compl aint against Earl

Henry, P.E. (Respondent or Mr. Henry) . The Administrative Complaint

charg ed Mr. Henry with a violation of section 471.033(1)(k) by failing to

comply with a Final Order entered by the Board i n a prior disciplinary case ,

FEMC Case No. 20150 13030 . The Administrative Complaint alleged that

Respondent appealed the Board's Final Order to the Second District Court of

Appeal (Case No. 2D18 - 1866), which affirmed the Board's Final Order on

April 3, 2019, and issued its Mandate on April 23, 2019 , but that as of the

issuance of the Administrative Complaint, R espondent still ha d not complied

with the Final Order .

Mr. Henry timely requested a disputed - fact hearing . He identified the

only alleged fact he disputed as the allegation that the Board's Final Order

had been affirmed by the Second District Court of Appeal. On March 17,

2021, the matter was referred to DOAH for assignment of an administrative

law judge to conduct the requested hearing.

The hearing was scheduled by Zoom video conference on April 23, 2021.

Prior to the hearing, b oth parties filed their witness and exhibit lists, and

transmitted copies of their proposed exhibits to DOAH. The hearing went

forward as scheduled, with both parties appearing and participating.

At the hearing, Petitioner presented the testimony of Wendy Anderson,

FEMC Investigator. Petitioner's Exhibits 1 through 12 were admitted into

evidence, without objection. Respondent testified on his own behalf.

Respondent's Exhibits 1 through 4 were admitted, without objection.

Af ter the testimony and exhibits were received, the evidentiary record was

closed. A ten - day deadline was established for t he parties to file proposed

recommended orders (PROs), running from the date of filing of the hearing

transcript at DOAH.

The one - volu me Transcript was filed on May 11 , 2021. Petitioner timely

filed its P RO. However, Respondent did not timely file a PRO by the deadline ,

which was May 21, 2021 . Instead, on May 25, 2021, Respondent filed a

"Response to the Petitioner's Proposed Recommended Order," which is not an

authorized filing under this tribunal's rule s for post - hearing filings. 1

Nonetheless, Petitioner has not objected to Respondent's impermissible

response or to the untimely filing. Therefore, the undersigned accept s the late

filing a s Res pondent's PRO, as if Respondent had followed proper procedure

by request ing and receiving an extension of the filing deadline (as the parties

were informed they could do at the end of the hearing, provided they filed a

written request before the dead line). Petitioner's PRO and Respondent's

filing, which is treated as a PRO, have been co nsidered in the preparation of

this Recommended Order.

F INDINGS OF F ACT

1 . The Board is charged with regulating the practice of engineering

pursuant to chapter 471, Fl orida Statutes. The FEMC is charged with

providing administrative, investigative, and prosecutorial services to the

Board, pursuant to section 471.038.

1 Florida Administrative Code Rule s 28 - 106.215 and 28 - 106.216(2), part of the Uniform Rules

of Procedure that apply to DOAH proceed ings, address post - hearing filings. These rules

provide that the presiding judge shall establish a single deadline for parties to file proposed

orders containing proposed findings of fact and conclusions of law. The rules provide for

parties to file their PROs at the same time, by the deadline established by the presiding

judge, and do not permit either party to file responses to each other's PRO.

2 . Mr. Henry is , and at all times material to this matter has been , a

licensed professional engineer in the s tate of Florida, having been issued

license number PE 45894.

3. In a prior disciplinary case designated FEMC Case No. 2015013030, the

Board issued a Final Order on April 18, 2018 (2018 Final Order) , determining

that Mr. Henry had committed disciplina ble violations and imposing

disciplinary penalties.

4. Th e 2018 Final Order was the culmination of d isciplinary proceedings

t hat included the following steps : (1) FEMC, on behalf of the Board, issued an

administrative complaint charging Mr. Henry with comm itting four counts of

negligence in violation of specified statutes and rules ; (2) Mr. Henry

request ed a disputed - fact administrative hearing to contest the charges ;

(3 ) The Board referred the matter to DOAH , where it was assigned Case

No. 17 - 3840 and proc eeded to a d isputed - fact evidentiary hearing before

presiding Administrative Law Judge Hetal Desai ; (4) the DOAH proceeding

concluded with issuance of a Recommended Order by Administrative Law

Judge Hetal Desai finding that Mr. Henry had committed three co unts of

negligence in violation of the statutory and rule provisions charged in the

administrative complaint, and recommend ing penalties ; and (5) Mr. Henry

filed exceptions to the Recommended Order with the Board , to which

responses were filed by the prose cuting attorney who represented Petitioner

in the DOAH hearing .

5. The 2018 Final Order : (1) a cknowledged t he exceptions , but found them

not in compliance with statutory requirements ; (2) made a finding that the

Findings of Fact in the Recommended Order w ere supported by competent

substantial evidence and adopted them; ( 3 ) adopted the Conclusions of Law

in the Recommended Order; ( 4 ) imposed discipline consistent with

recommendations in the Recommended Order ; and ( 5 ) t axed costs against

Mr. Henry .

6 . Mr. He nry timely appealed the 2018 Final Order to the Second District

Court of Appeal. Earl E. Henry, P.E. v. Florida Board of Professional

Engineers , Case No. 2D18 - 1866.

7 . Mr. Henry was initially represented by counsel in his appeal . However,

after filing seve ral motions for extension s of time to file the initial brief,

which were granted, Mr. Henry's attorney filed a motion to withdraw.

Mr. Henry filed his own initial brief , 90 days after the initial brief would have

been due if extensions were not granted. Mr . Henry also filed his own

amended initial brief, after the first attempt was stricken , as well as a reply

brief, completing the briefing in the appeal on December 14, 2018.

8. The docket of the appeal, in evidence, reflects t hat n o oral argument

was reque sted or held and that no motion for stay of the 2018 Final Order

during the pendency of the appeal was filed with the appellate court . No

evidence was offered at the hearing to show that Mr. Henry or his attorney

filed a motion with the B oard at the outset of the appeal for a stay of the 2018

Final Order while the appeal was pending in the Second District Court of

Appeal. 2

9 . On April 3, 2019, the Second District Court of Appeal filed its Opinion.

The Opinion provided:

PER CURIAM.

Affir med.

NORTHCUTT, KELLY, and ATKINSON, JJ., Concur.

In common parlance, th is was a " PCA " O pinion, with " PCA " standing for "Per

Curiam , Affirmed" without written explanation as to why the court has

affirmed the lower tribunal's decision that is the subject of the appeal.

10 . At the top of the page of the PCA Opinion in Mr. Henry's appeal of the

2018 Final Order , the following standard language appeared , stating: "NOT

2 As discussed below, Mr. Henry later filed a motion with the Board for a stay of the

probationary terms in the 2018 Final Order, but his motion was not filed until after the

appeal was concluded and the Mandate had issued.

FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF

FILED, DETERMINED."

11 . No motion for rehearing was filed with the Second District Court of

Appeal within the time allowed by the Florida Rules of Appellate Procedure.

Therefore, after the time to file a rehearing motion had expired, the court

issued its Mandate on April 23, 2019 .

12 . Th e Mandate provided, in pertinent part:

THIS CAUSE HAVING BE EN BROUGHT TO THIS C OURT BY

APPEAL , AND AFTER DUE CONSI DERATION THE COURT

HAVING ISSUED ITS OP INION ;

YOU ARE HEREBY COMMANDED THAT SUCH

FURTHER PROCEEDINGS BE HAD IN SAID CAUSE , IF

REQUIRED , IN AC CORDANCE WITH THE OP INION OF THIS

COURT ATTACHED HERET O AND INCORPORATED A S PART

OF THIS ORDER , AND WITH THE RULES OF PROCEDURE AND

LAWS OF THE STATE OF FLORIDA .

1 3 . Th e court's PCA Opinion, attached to the Mandate and incorporated

as part of the Mandate , did not require further proceedings. It did not, for

example, reverse the 2018 Final Order and remand for further proceedings

consistent with its opinion, or reverse and remand with instructions to the

Board. Instead, it affirmed the 2018 Final Order.

1 4 . Mr. Henry claims to have misunderstood the Mandate as conveying to

him the right to require further proceedings b efore the Board b y requesting

them . That is not a defensible interpretation of the Mandate, which identifies

the court's opinion a s the sourc e for any required further proceedings . That is

what is meant by " such further proceedings be had in this cause, i f required,

in accordance with the opinion of this court attached hereto and

incorporated as part of this order . " (emphasis added) . If an opin ion require s

further proceedings, then such proceedings must be held in accordance with

the opinion. But if the opinion does not require further proceedings, then

further proceedings cannot be held in accordance with the opinion.

1 5 . Despite the PCA Opini on affirming the 2018 Final Order , Mr. Henry

sent a r equest to the Board on June 11, 2019, for "a rehearing . " 3 The request

state d that it was being submitted "per" section 120.54(5)(b)5., Florida

Statutes. 4 The request also quoted the language in the Manda te and

concluded by saying that "per said command," Mr. Henry was requesting "a

rehearing on all the disputed items of the Administrative Law Judge's

Findings of [F] act."

16. In addition to requesting a " rehearing " (second administrative

hearing), Mr. Henry also submitted to the Board a request to "stay" the

probationary requirements imposed by the 2018 Final Order "until the

matter of a rehearing is resolved or decided." (Resp. Ex. 4). Th e request for a

stay, in evidence, bears the date May 23, 2019. N o statute or rule was

identified by Mr. Henry as authority for his request for a stay.

1 7 . The Board has not taken action to formally consider or rul e on

Mr. Henry's request for a rehearing , or his request for a stay . It ha s no

authority to do so.

18. Aft er the PCA Opinion and Mandate, M r. Henry was contacted by a

paralegal for the Board, whose title is Probable Cause & Final Order

Compliance Coordinator , informing Mr. Henry of the requirements and

3 Respondent's Exhibit 3, in evidence, is Mr. Henry 's June 11, 2019, request to the Board for

a " rehearing . " No other requests for rehearing w ere offered in evidence . However, Mr. Henry

stated in other documents in evidence that after the Mandate, he submitted requests to the

Board for rehearing "as per said command [of the Mandate] " on May 5, 2019, and again on

May 23, 2019. The undersigned has considered only the request for rehearing in evidence,

but the same findings would apply to any similar requests for rehearing that Mr. Henry filed

with the Board after the Mandate.

4 Section 120.54(5)(b) authorizes the Administration Commission to adopt uniform rules of

procedure "for the filing of request for administrative hearing by a respondent in agency

enforcement and disciplinary actions." § 120.54(5)(b)5., Fla. Stat. The rule adopted to carry

out this statutory directive is Florida Administrative Code Rule 28 - 106.2015. This rule

applies to requests for administrative hearings by respondents when they are served with

administrative complaints in agency disciplinary actions, to allow respondents to dispute the

facts and contest the charges in a n adm inistrative hearing. Mr. Henry exercised this right in

June 2017, when he requested a disputed - fact hearing in the prior disciplinary case that

culminated in the 2018 Final Order . There is no statute or uniform rule of procedure

authorizing a request for r ehearing to the agency after a disciplinary action is concluded by

final order.

deadlines for compliance with the 2018 Final Order. Even t hough there is no

evidence of a stay of the 2018 Final Order having been issued by the Board or

the Second District Court of Appeal during the pendency of the appeal, the

Compliance Coordinator had revised the due dates for compliance with the

2018 Final O rder as if compliance had been stayed while the appeal was

pending. But after the 2018 Final Order was affirmed in the PCA Opinion

and the Mandate was issued , signaling the end of the appeal, compliance

with the 2018 Final Order was expected. Mr. Henry r es ponded by saying that

he was waiting for the Board to rule on his pending request for rehearing and

his request for a stay . Mr. Henry was informed that there was no authority

for the Board to address those requests and there would be no response by

the Boa rd. He was told to consult an attorney if he did not understand the

process or did not accept what he was being told.

1 9 . Mr. Henry did not accept what he was told by Petitioner's staff.

Instead, he fil ed a "petition" with the Second District Court of Appe al in his

now - concluded appeal , as king the court to hold the Board in contempt.

Mr. Henry's " Petition for a Finding of Contempt" argued to the appellate

court that its Mandate commanded that "further proceedings be had in said

cause . " ( In making this argum ent, Mr. Henry omitt ed the phrase "if required"

and the phrase "in accordance with the opinion of this court that is attached

hereto and incorporated as part of this order . ") Mr. Henry stated that he had

submitted one or more requests to the Board for a re hearing "as per said

command," but had instead gotten an email notification that he needed to

comply with the disciplinary requirements imposed by the 2018 Final Order.

Mr. Henry added that w hen he asked about his request for rehearing, he was

informed tha t the case was final and there was no option for rehearing. The

upshot of Mr. Henry's petition to the Second District Court of Appeal was

that he wanted the appellate court to hold the Board in contempt for refusing

to conduct "further proceedings" as he c ontended was required by the

Mandate. The relief he requested was for the court either to "Order a

Rehearing under F.S. 120.57 on all the disputed issues of the ALJ's Findings

of Fact" or to proceed to hear and determine the facts itself. (Pet. Ex. 7).

20 . By Order issued August 5, 2019, the Second District Court of Appeal

ruled as follows: "We treat Appellant's petition for a finding of contempt as a

motion to enforce mandate. The petition is hereby denied."

2 1. Mr. Henry then repackaged the "petition" i nto a new filing called a

" M otion for a Finding of Contempt ," but otherwise nearly identical to the

prior filing. As in the petition, Mr. Henry 's motion argued to the Second

District Court of Appeal that the Board should be held in contempt for

refusing to conduct "further proceedings" as he contended was required by

the Mandate , and for ignoring his request s for rehearing and stay that he

filed with the Board "as per said command . " Mr. Henry concluded by saying

that "because the Board has chosen to ignore the Mandate," it should be held

in contempt and the court should order the Board "to begin FURTHER

PROCEEDINGS as ordered in the MANDATE of the court." (Pet. Ex. 8).

22 . By Order issued October 10, 2019, the Second District Court of Appeal

disposed of the motion, ruling as follows: "Appellant's ' motion to the court ' is

stricken as unauthorized."

23 . Thus, Mr. Henry's arguments that the Mandate required further

proceedings and that the Board was wrong to ignore his requests for

rehearing and stay were reject ed by the same court that issued the PCA

Opinion and Mandate . Despite this, Mr. Henry persists in this proceeding to

re - argue th ose same arguments . Mr. Henry also has attempted to re - argue in

this proceeding h is complaints with the 2018 Final Order , includ ing

complaints w ith the fairness of the pr oceedings leading up to issuance of the

2018 Final Order. But h is opportunity to raise any and all arguments to

contest th e 2018 Final Order was in the appeal to the Second District Court

of Appeal. Mr. Henry faile d to persuade t he appellate court that there were

grounds to reverse the 2018 Final Order or remand to the Board for further

proceedings. Instead, the Second District Court of Appeal rejected the appeal

of the 2018 Final Order in its entirety when it issue d its PCA Opinion

affirming the 2018 Final Order. The PCA Opinion became final and binding

on Mr. Henry and the Board upon issuance of the Mandate.

24 . The 2018 Final Order that was affirmed on appeal imposed the

following discipline:

Respondent's license shall be placed on probation

for a period of two (2) years. Pursuant to Rule

61G15 - 19.004(1), F.A.C., the terms of probation

include the following:

a. Successful completion of the Engineering Laws

and Rules Study Guide;

b. Completion of a Board - approved course in

Professionalism and Ethics;

c. Appearance before the Board at the end of the

probationary period ;

d. Plans review at six (6) and eighteen (18) month

intervals.

2 5 . In addition, the 2018 Final Order taxed costs incurred by FEMC in

investigatin g and prosecuting the disciplinary case in the amount of

$16,000.00 (a reduction in the total amount of costs incurred by FEMC , which

was $20,497.92 , which could have been taxed against Mr. Henry ). Mr. Henry

was ordered to pay the $16,000.00 costs assessme nt "within one (1) year of

the date of this Order." 5

2 6 . There is no dispute that Mr. Henry has not complied with a ny of the

terms of t he 2018 Final Order. At the hearing, Mr. Henry admit ted he has

5 Petitioner's PRO erroneously states that the $16,000.00 cost assessment in the Final Order

was "to be paid within two years of the Final Order, or no later than April 19, 2020." (Pet.

PRO at 3). The 2018 Final Or der allowed one year, not two: "Costs are to be paid within one

(1) year from the date of this Order." 2018 Final Order p. 3, ¶ 3 (Pet. Ex. 1, Bates p. 007).

However, the one - year deadline was voluntarily extended by the Board's Final Order

Compliance Coor dinator , as if a stay had been requested and granted during the pendency of

the appeal, even though no such request was made by or on behalf of Mr. Henry. As such, the

one - year time period would have logically begun on the date the Mandate was issued Ð

April 23, 2019 Ð and expired on April 23, 2020.

not complied with the 2018 Final Order , admitting for the first time that he

may have misunderstood the Mandate: "My whole problem here may have

been that I misinterpreted the meaning of the mandate, okay. Okay. It was

because of this mandate that I am trying to explain why I did not comply

with the requirements of the final order." (Tr. 54).

2 7 . Since t he re is no evidence that a motion to stay the 2018 Final Order

during the pendency of the appeal was ever filed with and granted by the

Board or the Second District Court of Appeal , the Board could have rightly

in sisted on compliance with its 2018 Final Order right away , despite the

pendency of Mr. Henry's appeal for just over one year after the 2018 Final

Order was issued. The staff for the Board did not take that position,

extending the deadlines until after the 2018 Final Order was affirmed on

appeal.

2 8 . Mr. Henry has violated the 2018 Final Order of the Board in FEMC

Case No. 2015013030. Mr. Henry's st ubborn refusal to acknowledge the

finality of the 2018 Final Order after it was affirmed without comment by th e

Second District Court of Appeal may have initially been borne of his

unfamiliarity with the administrative and appellate processes and rules and

his unwillingness to accept when others tried to explain it to him (including

the five attorneys he said he c onsulted with, all of whom told him he had no

case). But the court flatly rejected Mr. Henry 's arguments. He can no longer

claim that asserting the same arguments that the appellate court flatly

rejected is still in good faith or based on a legitimate misu nderstanding.

Mr. Henry told the court what he thought the Mandate required in his

petition / motion for contempt . The court was willing to consider the petition as

a motion to enforce the Mandate. That means if the court found any merit in

Mr. Henry's argu ment that the Board had violated the Mandate by ignoring

his post - Mandate requests for rehearing and a stay, the court would have

tak en action to enforce its Mandate. The court did not ; it denied the motion to

enforce the Mandate. It should have been obvio us to Mr. Henry, at least by

this point, t hat th e Mandate did not mean he could request f urther

proceeding s; the 2018 Final Order was affirmed , and the appeal was done.

29. It is now more than 19 months since the appellate court issued its

second rejection of Mr. Henry's arguments. Compliance with the long - final

2018 Final Order is long past due.

C ONCLUSIONS OF L AW

30 . The Division of Administrative Hearings has jurisdiction over the

parties and subject matter, pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2020). 6

31 . The FEMC, on behalf of the Board, issued an Administrative

Complaint against Mr. Henry, which was served on him, pursuant to sections

120.60 and 471.038, Florida Statutes. Section 120.60 authorizes agencies to

initiate discipl inary action against licensees by setting forth charges in an

administrative complaint served on the licensee. Section 471.038 (3)

authorizes FEMC to provide administrative, investigative, and prosecutorial

services to the Board.

32. Mr. Henry timely respon ded by requesting a disputed - fact

administrative hearing pursuant to sections 120.569 and 120.57(1). The

request complied with the requirements of rule 28 - 106.2015.

33. A proceeding to suspend or revoke a license, or to impose other

discipline upon a licen see, is penal in nature. State ex rel. Vining v. Fla. Real

Estate Comm'n , 281 So. 2d 487, 491 (Fla. 1973). Petitioner therefore bears

the burden of proving the charges against Respondent by clear and

convincing evidence . Fox v. Dep't of Health , 994 So. 2d 416, 418 (Fla. 1st DCA

2008) (citing Dep't of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996)).

6 Citations herein to Florida Statutes are to the 2020 codification unless otherwise noted. It

is noted that the statute charged in the Administrative Complaint has not been amended

since 2010.

3 4. As stated by the Florida Supreme Court:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remembered; the testimony must be precise and

explicit and the witnesses must be lacking in

confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind

of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations

sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker ,

492 So. 2d 797, 800 (Fla. 4th DCA 1983)).

35. The only alle gation in the Administrative Complaint that was

disputed by Respondent was that the 2018 Final Order was affirmed by the

Second District Court of Appeal in Case No. 2D18 - 1866 on April 3, 2019.

36. Petitioner met its burden by proving that the 2018 Final O rder was

affirmed in its entirety and without comment, by the PCA Opinion issued by

the Second District C ourt of Appeal in Case No. 2D18 - 1866 on April 3, 2019.

Respondent offered no evidence to the contrary. He had no basis for disputing

this allegation.

37. Petitioner proved that the PCA Opinion became final upon issuance by

the court of its Mandate in Case No. 2D18 - 1866 on April 23, 2019.

38. Mr. Henry's apparent claim that the language in the Mandate

somehow changed the outright affirmance by the PCA Op inion is wrong as a

matter of law. The Mandate directed the lower tribunal (the Board) to

conduct such further proceedings if required by the court's Opinion, which

was attached to and incorporated as part of the Mandate.

39. What Mr. Henry wanted the cou rt to do was reverse the 2018 Final

Order and remand for further proceedings consistent with a written opinion

explaining that the F indings of F act (set forth in Judge Desai's

Recommended Order and adopted by the Board in their entirety in the 2018

Final O rder) were not supported by competent substantial evidence. But the

court plainly did not do that. Instead, it affirmed the 2018 Final Order.

4 0 . As Mr. Henry has acknowledge d , the Second District Court of Appeal's

review of the 2018 Final Order was gover ned , in part, by standards of review

in section 120.68(7), Florida Statutes, providing as follows:

The court shall remand a case to the agency for

further proceedings consistent with the courtÔs

decision or set aside agency action, as appropriate,

when it finds that:

(a) There has been no hearing prior to agency

action and the reviewing court finds that the

validity of the action depends upon disputed facts;

(b) The agencyÔs action depends on any finding of

fact that is not supported by competent, substantial

evidence in the record of a hearing conducted

pursuant to ss. 120.569 and 120.57; however, the

court shall not substitute its judgment for that of

the agency as to the weight of the evidence on any

disputed finding of fact;

(c) The fairness of the proceedings or the

correctness of the action may have been impaired

by a material error in procedure or a failure to

follow prescribed procedure;

(d) The agency has erroneously interpreted a

provision of law and a correct interpretation

compels a particular action; or

(e) The agencyÔs exercise of discretion was:

1. Outside the range of discretion delegated to the

agency by law;

2. Inconsistent with agency rule;

3. Inconsistent with officially stated agency policy

or a prior agency practice, if deviation therefrom is

not explained by the agency; or

4. Otherwise in violation of a constitutional or

statutory provision;

but the court shall not substitute its judgment for

that of the agency on an issue of discretion.

4 1 . As Mr. Henry also acknowledge d , the primary basis for his appeal of

the 2018 Final Order was his argument that the F indings of F act

recommended by Judge Desai, which were adopted by the Board upon finding

that they were supported by competent substantial evidence , were not, in

fact, supported by competen t substantial evidence. This is a common focal

point for appeals of agency final orders. See, e.g. , Stasinos v. Dep't of Bus. &

Prof'l Reg., Constr . Ind us . Lic ensing Bd. , 209 So. 3d 18, 21 (Fla. 4th DCA

2016).

4 2 . The Second District Court of Appeal did no t " remand [the] case to the

[Board] for further proceedings consistent with the courtÔs decision or set

aside [the Board's] agency action . " If the court had found that the 2018 Final

Order depend ed on findings of fact not supported by competent substantial

evidence , or that there was any other basis enumerated in section 120.68(7)

for reversing and remanding for further proceedings or for setting aside the

2018 Final Order , the court would not have affirmed .

4 3 . As explained by the court in Stasinos :

Sectio n 120.68, Florida Statutes, governs appellate

review of final agency action under the Florida

Administrative Procedure Act. The inquiry on

appeal is generally whether the final order is

supported by competent, substantial evidence in

the record. If so supp orted, this court must affirm

the final order unless there is a demonstration of a

material error in procedure, an incorrect

interpretation of law, or an abuse of discretio n.

209 So. 3d at 21 (citations omitted ; emphasis added ). Section 120.68(8) makes

th is clear:

Un less the court finds a ground for setting aside,

modifying, remanding, or ordering agency action or

ancillary relief under a specified provision of this

section, it shall affirm the agencyÔs action.

(emphasis added).

4 4 . The PCA Opinion affirm ing without comment the 2018 Final Order

leaves no room for debate or argument about the result of Mr. Henry's

appeal. He was unsuccessful convincing the court that the 2018 Final Order

was not supported by competent substantial evidence so as to require a

remand for further proceedings. The court did not find that there were any

material errors in procedure or any other grounds for remanding the case for

further proceedings. The court was therefore required to, and did, affirm.

4 5 . As held in Florida Comm ission on Ethics v. Sullivan , 430 So. 2d 928,

932 (Fla. 1st DCA 1983) , "the effect of a 'per curiam affirmed' decision (PCA)

is clear : It becomes the law of the case, is res judicata," meaning that it

resolves all issues and is binding on the parties to th e appeal. The court

elaborated, by reference to what the Florida Supreme Court had said about

the effect of a PCA opinion :

In South Florida Hospital Corp. v. McCrea , 118

So. 2d 25 (Fla. 1960), the court addressed the effect

of the word "affirmed" when used as the sole

utterance of an appellate court in disposing of a

case. The court noted that the word "necessarily

means that the appellate court has carefully

examined all points raised by all appealing parties

and found them to be without merit." Id . at 31.

4 6 . It is equally clear that the Mandate cannot be distorted as Respondent

suggests to somehow change the meaning of the PCA Opinion. If the Opinion

did not require further proceedings, then the Mandate did not change that.

Mr. Henry offered a self - servi ng twisted interpretation of the Mandate,

unsupported by its words, to argue that even though the court's PCA Opinion

affirmed the 2018 Final Order, the Mandate conveyed to him personally the

right to require further proceedings. Instead, the phrase "if re quired" in the

Mandate refers to whether the court 's opinion requires further proceedings.

Where, as here, the Second District Court of Appeal's PCA Opinion affirmed

the 2018 Final Order and did not require further proceedings, it would be

clear error for the Board, as the lower tribunal, to conduct further

proceedings anyway.

4 7 . This basic, fundamental point of appellate law was explained in

National Education Centers , Inc. v. Kirkland, 678 So. 2d 1304, 1305 - 1306

(Fla. 4th DCA 1996):

We agree with appell ant's argument that the trial

court lacked authority to modify the original

prejudgment interest award. In the previous

appeal, th is court affirmed the $11,510.70 award of

prejudgment interest. [ O ] nce an appellate court

affirms an order, judgment, or decre e, the trial court

loses all authority to change, modify, nullify, or

evade that order, judgment or decree. È The fact

that we did not discuss one of the issues does not

mean we did not affirm that issue. (emphasis

added; citations and internal quotes omit ted).

Accord Br yan and Sons Corp. v. Klefstad , 265 So. 2d 382, 386 (Fla. 4th DCA

1972) ("The law in Florida is clear that after appeal of a judgment and its

affirmance by an appellate court, the trial court is without authority to take

any other action in the cause other than to carry out the mandate of the

appellate court. On appeal and affirmance the judgment of the trial court

becomes the judgment of the appellate court, and therefore, the trial court is

without authority to change, modify, or alter the judgment È . " ) .

48 . T he Mandate, itself, is simply the appellate court's order signaling

that the court's opinion has become final, either because no motion for

rehearing was filed with the appellate court pursuant to Florida Rules of

Appellate Procedure 9.330 or 9.331, or, if filed, any such motions were

disposed of by the appellate court , and the time has come to carry out the

requirements of the court's opinion . When the court's opinion affirms the

lower tribunal's order or judgment, then the affirmed order or judgment

becomes final and binding on the parties as of the date of the Mandate. See,

e.g. , Thibodeau v. Sarasota Memorial Hosp. , 449 So. 2d 297 , 298 (Fla. 1st

DCA 1984) ("[P]ayment of compensation benefits affirmed on appeal become

due upon final ity of this court's orderÈ . It is well settled that the judgment

of an appellate court, w h ere it issues a mandate, is a final judgment. È

Accordingly, we hold that the judgment in the instant case became final on È

the date mandate was issued." (citations omitted)) ; Beaty v. State , 684 So. 2d

206 , 207 (Fla. 2d DCA 1996) ("Mr. Beaty's direct appeal was affirmed per

curiam without written opinion. We hold that a judgment and sentence

become final for purposes of rule 3.850 [deadline to file a motion for

post conviction relief] when our mandate issues in a direct appeal in which

the judgment and sentence are affirmed without a written opinion.") .

4 9 . As of April 23, 2019, the date of the Mandate, with the PCA Opinion

attached, both Mr. Henry and the Board bec ame bound by the 2018 Final

Order. As of that date, the Board, as the lower tribunal, lost all authority to

change, modify, nullify, or evade the 2018 Final Order , and Mr. Henry's

efforts to change, or further delay compliance with, the 2018 Final Order

ca me to an end .

50. Mr. Henry is guilty of violating section 471.033(1)(k), as charged, by

not complying with the 2018 Final Order.

51. The Board has adopted Florida Administrative Code Rule 61G15 -

19.004, setting forth standards that apply to the Board's im position of

disciplinary penalties. The penalty guidelines are set forth in paragraph (2),

and express ranges of penalties which are generally to be followed by the

Board in imposing disciplinary penalties for violations of specified statutory

and rule pro visions. For an initial offense of section 471.033(1)(k) by violating

an order of the Board, the penalty range is as follows:

Depending on the severity of the violation, from

Suspension until compliant with the order of the

Board and $1,000.00 fine, to Rev ocation and

$5,000.00 fine.

52. Deviation from the penalty guideline range requires clear and

convincing evidence of aggravating or mitigating circumstances. See Fla.

Admin. Code R. 61G15 - 19.004(3). No such evidence was presented by either

party.

53. Pet itioner has taken the position that all it seeks to accomplish in this

proceeding is to get Mr. Henry to comply with the 2018 Final Order.

Therefore, Petitioner has proposed penalties at the lowest end of the penalty

range to which the Board must adhere.

5 4. As previously noted, it would be reasonable to conclude that at least by

the Second District Court of Appeal's rejection of Mr. Henry's post - Mandate

filings , Mr. Henry's persistent refusal to acknowledge the finality of the 2018

Final Order could be cha racterized as no longer in good faith. Nonetheless,

the undersigned accepts Petitioner's position advocating for leniency within

the penalty range to which the Board must adhere.

55. The following penalties are recommended:

a. Mr. Henry's license shall be suspended until he complies with those

terms of the 2018 Final Order with which he is able to lawfully comply

without an active license. 7 Those terms are: (1) payment of $16,000.00 as

costs taxed against Mr. Henry; (2) s uccessful completion of the Engineer ing

Laws and Rules Study Guide; and (3) c ompletion of a Board - approved course

in Professionalism and Ethics.

b. Upon reactivation of Mr. Henry's license, the probationary

requirements in the 2018 Final Order that require Mr. Henry to have an

active license will begin for a two - year period. These requirements are:

7 Petitioner's PRO re quests as a penalty that Mr. Henry's license be suspended until he

complies with all requirements of the 2018 Final Order. However, Petitioner did not consider

th at the plans review provision would seem to require an active license . Therefore, the

undersig ned has recommended license suspension until Mr. Henry achieves compliance with

those terms not requiring an active license, followed by a two - year probationary term during

which the plans review provision would be required, along with the final appearance before

the Board at the end of the probationary period.

(1) p lans review at six and 18 - month intervals; and (2) a ppearance before the

Board at the end of the two - year probationary term.

c. Mr. Henry shall be ordered to pay a $1,000.00 fine.

d. Costs r elated to the investigation and prosecution of this case shall be

awarded in Petitioner's favor and taxed against Mr. Henry.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Board of Profess ional Engineers issue a final

order:

1. Finding that Respondent, Earl Henry, P.E., violated section

471.033(1)(k), Florida Statutes, by not complying with the Board's 2018 Final

Order entered in FEMC Case No. 2015013030;

2. Requiring Respondent to pay a fine of $1,000.00;

3. Suspending Respondent's license until he complies with the terms of

the 2018 Final Order with which he is able to comply without an active

license (i.e., payment of the $16,000.00 cost assessment and compliance with

educational requir ements);

4. Imposing a two - year probationary term following reactivation of

Respondent's license subject to the requirements from the 2018 Final Order

that require an active license (i.e., the p lans review requirement at specified

intervals followed by an appearance before the Board at the end of the

probationary term); and

5. Awarding costs of investigating and prosecuting this action, to be taxed

against Respondent.

D ONE A ND E NTERED this 16th day of June , 2021 , in Tallahassee, Leon

County, Florida.

S

E LIZABETH W. M CARTHUR

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of June , 2021 .

C OPIES F URNISHED :

Ear l E. Henry, P.E. John Jefferson Rimes, Esquire

6880 52nd Street North Florida Board of Professional Engineers

Pinellas Park, Florida 33781 D epartment of B usiness

and P rofessional R egulation

Zana Raybon, Executive Director 2639 North Monroe Street , Suite B - 112

Florida Board of Professional Engineers Tallahassee, Florida 32303

D epartment of B usiness

and P rofessional R egulation David Axelman, General Counsel

2639 North Monroe Street, Suite B - 112 Office of the General Counsel

Tallahassee, Florida 3 2303 - 5268 D epartment of B usiness

and P rofessional R egulation

Julie I. Brown, Secretary 2601 Blair Stone Road

D epartment of B usiness Tallahassee, Florida 32399 - 2202

and P rofessional R egulation

2601 Blair Stone Road Lawrence D . Harris, Esquire

Tallahassee, Florida 32399 - 2202 Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended O rder. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.