Opinion
No. 72-029
Decided December 12, 1972.
Registered land surveyor brought action to review order of regulatory board suspending his license. From district court determination affirming order of board, plaintiff appealed.
Reversed
1. LIMITATION OF ACTIONS — Three-Month Limit — Board — Hearing Charges — Against — Land Surveyor — Not Tolled — During — Investigation of Complaint. Where applicable statute of limitations requires that board of registration for land surveyors hear all charges not dismissed as unfounded or trivial within three months of date upon which they are preferred, this three-month limit is not tolled during board's investigation of complaint; thus, board's failure to comply with this provision of statute requires that charges against plaintiff be dismissed.
Appeal from the District Court of the City and County of Denver, Honorable Henry E. Santo, Judge.
Tinsley, Frantz and Heady, Mansur Tinsley, for plaintiff-appellant.
Duke W. Dunbar, Attorney General, William Tucker, Assistant, for defendant-appellee.
On June 19, 1970, Kenneth Atkinson filed a complaint against Kenneth R. Fenwick, a registered land surveyor, with the Colorado State Board of Registration of Professional Engineers and Land Surveyors, alleging that Fenwick had wrongfully certified a survey which he had in fact not completed. On December 4, 1970, the board held hearings, after which they suspended Fenwick's license to practice land surveying as a registered land surveyor for a period of six months. Fenwick brings this appeal from a determination of the district court affirming the action of the board. We reverse.
C.R.S. 1963, 51-2-10(3), provides:
"All charges, unless dismissed by the board as unfounded or trivial, shall be heard by the board within three months after the date on which they shall have been preferred."
The board did not comply with this statute. After receiving the complaint from Atkinson, the executive secretary of the board wrote Mr. Fenwick, advising him that the complaint would have to be investigated, and asked him for his cooperation in arranging a time to discuss the complaint with him. Fenwick did not answer this letter or a subsequent letter mailed approximately one month later, advising him of essentially the same facts. Fenwick did answer a third letter, which was mailed to him on August 7, but did not arrange a meeting with the secretary. After a fourth letter, mailed to Fenwick on August 13, a meeting between Fenwick and the secretary was arranged. This meeting took place on September 22, 1970, after which the secretary filed a report, stating the essential facts of the complaint. In the meantime, Atkinson attempted to set a hearing on the complaint for August 8. Finally, on October 15, 1970, a notice was mailed to Fenwick, advising him that there would be a hearing on the complaint on December 4, 1970, nearly six months after the complaint was filed.
The board here argues that the wording of the statute allows it to take its time while investigating a complaint, to determine if it is "unfounded or trivial," and only requires that the hearing be held within the time limit after the charges are "preferred." The argument is essentially that charges are not preferred until the board has concluded its investigation.
1967 Perm. Supp., C.R.S. 1963, 51-2-10(2), states that charges can be preferred by any person. This encompasses the filing of a complaint as was done by Atkinson. Furthermore, C.R.S. 1963, 51-2-10(4), details the procedure for arranging the hearing by the commission. This section provides that the charges, along with a notice of the time and the place of the hearing, may be served on the registrant by mail or personal service. When it became clear to the board that Fenwick was not answering its request for a meeting, it should have scheduled a hearing and served him with a copy of the complaint, thereby thwarting his dilatory tactics.
[1] We find nothing in the applicable statute that provides for the tolling of the three month limit by investigations of the board. It is incumbent upon a commission or board to comply with the terms of the act which created it. Industrial Commission v. Plains Utility Co., 127 Colo. 506, 259 P.2d 282. While our examination of the record convinces us that the action taken by the Board on the charges may have been fully justified, their failure to follow the statutory procedure cannot be ignored.
Judgment reversed.
CHIEF JUDGE SILVERSTEIN and JUDGE SMITH concur.