STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF LAND SURVEYORS, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3683

)

LINCOLN A. HERREID, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on July 1, 1985, at Miami Florida.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Stephen L. Raskin, Esquire

7200 Bird Road

Miami, Florida 33155 PRELIMINARY STATEMENT

By a Third Amended Administrative Complaint, filed June 4, 1985, Petitioner, Department of Professional Regulation, Board of Land Surveyors (Department), charged that Respondent, Lincoln A. Herreid, violated Chapter 472, Florida Statutes, because the surveys he prepared on three parcels of property were inaccurate and failed to conform with accepted surveying standards.

At final hearing the Department called Patrick Murphy, Gary B. Castel, and James Beadman, as witnesses. The Department offered Exhibits 1-9, and they were received into evidence. Respondent testified on his own behalf, but offered no exhibits.

The Department has filed proposed findings of fact and conclusions of law, and they have been reviewed and considered. No proposed findings of fact and conclusions of law have been submitted on behalf of Respondent. To the extent any proposed findings have not been adopted in this Recommended Order, they have been rejected as being subordinate, cumulative, immaterial, or unnecessary, or as being contrary to the facts as found in this Recommended Order.

FINDINGS OF FACT

1. Respondent, Lincoln A. Herreid, was, at all times material hereto, licensed to practice land surveying in the State of Florida, having been issued license number 3015.

   
   

2. At issue in these proceedings are three surveys, which Respondent admits he performed, signed and sealed, to wit: A survey of the real property located at 9 East Lucy Street, Florida City, Florida; a survey of a portion of the real property located in Florida Fruitland Company's Subdivision No. One, Dade County, Florida; and, a survey of the real property located at 20301 S.W.

   117 Avenue, Miami, Florida.

   
   

   9 East Lucy Street Survey

   
   

3. On December 17, 1983, Respondent signed and sealed a Sketch of Survey" for Lots 1 and 2, Block 1, Hays Subdivision, Plat Book 55, Page 53, Public Records of Dade County, Florida, commonly known as 9 East Lucy Street, Florida City, Florida.

   
   

4. The Lucy Street property is rectangular in shape, and abuts streets on its north, east and west sides. The survey shows only one angle and no bearings, fails to reflect the measured distance to the nearest intersection of a street or right-of-way, and fails to reflect whether any monument was found, or set, at the southeast corner of the property.

   
   

5. The evidence establishes that no monument was found, or set, at the southeast corner of the property. Respondent avers that no monument was set because debris, composed of paints and chemicals, preempted the area and precluded the setting of a monument. However, no offset witness point was set, nor did the survey reflect why a monument had not been set.

Florida Fruitland Company Subdivision Survey

1. On February 24, 1984, Respondent signed and sealed a "Waiver of Plat," a survey of a portion of Tract 21, Section 15, Township 53 South, Range 40 East, of Florida Fruitland Company's Subdivision No. One, Plat Book 2, Page 17, Public Records of Dade County, Florida.

   
   

2. The Waiver of Plat shows only one angle and no bearings, indicates the four corners of the property by "Pipe," without reference to whether the pipe was set or found, fails to reflect the measured distance to the nearest intersection or right-of- way, fails to reference the source documents for the legal description of the property, and fails to provide vertical datum and benchmark descriptions. Further, the survey incorrectly positioned the property, reflected inaccurate boundary measurements, and established an incorrect elevation.

   
   

3. The property, which is the subject of the Waiver of Plat, is rectangular in shape, zoned commercial (no side set- backs required), and its front (the northern boundary of the property) abuts Northwest 70th Street, between N.W. 82nd Avenue and N.W. 84th Avenue, Miami, Florida. The evidence establishes that the north/south dimensions of the property, as reflected by Respondent's survey, were overstated by 2.1' on the west boundary line, and

   2.01' on the east boundary line. Although Respondent correctly depicted the correct distances of the east/west property line, the positioning of that line in relation to the fractional line was in error by .12', and the northwest and northeast corner placements were in error by .24' and .20', respectively. The elevation established by Respondent's survey was in error by one foot.

   
   

   20301 S.W. 117 Avenue Survey

   
   

4. On June 13, 1984, Respondent signed and sealed a "Sketch of Survey," for Lot 17, Block 6, Addition J., South Miami Heights, Plat Book 68, Page 74, Public Records of Dade County, Florida commonly known as 20301 S.W. 117 Avenue, Miami, Florida.

   
   

5. The Sketch of Survey reflects only one angle and no bearings, and failed to set a monument or offset witness point for the northeast corner of the property.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. Section 472.033, Florida Statutes, provides:

   
   

   1. The following acts constitute grounds for which the disciplinary actions in subsection

      1. may be taken:

         1. Upon proof that the licensee is guilty

            . . . of negligence . . . in the practice of land surveying;

         2. Failing to perform any statutory or legal obligation upon a licensed land surveyor; vio- lating any provision of this chapter, a rule

      of the board or department. . . .

      (2) The board shall specify by rule the acts or omissions which constitute a violation of subsection (1).

      
      

8. Rule 21HH-2.01, F.A.C., provides:

   
   

   1. Pursuant to 472.033(2), Florida Statutes, the Board . . . hereby specifies that the fol- lowing acts or omissions are grounds for disciplinary proceedings pursuant to 472.033(1), Florida Statutes.

      (3) A registered land surveyor shall not be negligent in the practice of land surveying. The term negligence . . . is herein defined as the failure by a registered land surveyor to utilize due care in performing in a land sur- veying capacity, to fail to have due regard for acceptable standards of land surveying principles, or to fail to follow minimal tech- nical standards for land surveying promulgated by the Board. . . .

9. The minimal technical standards adopted by the Board of Land Surveyors are set forth in Chapter 21HH-6, F.A.C. Pertinent to this case are Rules 21HH- 6.02(7), 21HH-6.03(1), (6), (7), (8), (18), (19), and (20), 21HH-6.04(1) and (2), and 21HH-6.06(7), F.A.C.

   
   

10. The Department charges Respondent violated Rule 21HH- 6.02(7), F.A.C., because the three surveys at issue were not titled in accordance with Rule 21HH- 6.02(1), F.A.C. While the evidence does establish that it would have been more appropriate for Respondent to have identified the surveys as "Boundary Surveys," instead of "Sketch of Survey" or "Waiver of Plat," Rule 21HH-6.02(1), F.A.C., does not purport to be an exclusive list of the types, or titles, of surveys. Accordingly, the manner in which Respondent chose to title the subject surveys did not violate Rule 21HH-6.02(7), F.A.C.

    
    

11. However, the evidence does establish that Respondent violated the provisions of Rules 21HH-6.03, 21HH-6.04, and 21HH- 6.06, F.A.C., as charged. Rule 21HH-6.03 provides:

    
    

    1. In order for a survey to be acceptable in terms of this rule, such a survey must be full and complete and shall be certified by the surveyor in responsible charge as meeting

       these minimum technical standards. . . .

       1. . . . In all cases, reference must be made to the source of information and used in making that survey, such as: the recorded deed de- scription or other conveyance, a recorded or unrecorded plat, or other claim of right.

       2. All angles shall be shown directly on the drawing or by bearings or azimuths.

       3. In all areas where recorded lots and blocks are established, the measured distances to the nearest intersection of a street or right of way shall be shown on the

       drawing. . . .

       1. The surveyor shall make a determination of the correct position of the boundary of the real property and shall set monuments, as de- fined herein, unless monuments already exist at such corners. All monuments, found or

          placed, must be described on the survey drawing with data given to show their location upon

          the ground in relation to the boundary lines. When the property corner cannot be set, a wit- ness monument shall be placed and so noted upon the survey drawing.

       2. Every boundary monument or witness monument set shall:

          1. Be composed of a durable material;

          2. Have a minimal length of 18 inches;

          3. Have a minimum cross-section area of material of 0.2 square inches;

          4. Be identified with durable marker or cap bearing either Florida registration number of the land surveyor in responsible charge, the certificate of authorization number of the survey firm; or name of the survey firm;

          5. Be detectable with conventional instru- ments for finding ferrous or magnetic objects.

          When a case arises due to physical obstruc- tions so that neither a boundary monument nor a witness monument can practicably be set in accordance with (a)-(e), then alternative monumentation which is durable and identifiable shall be established for this particular situation.

       3. The accuracy of the measurements for the survey shall be based upon the type of survey and the current or expected use of the land. The accuracy of the measurements thus performed shall be substantiated by the computations of

       a closed traverse; the relative error of clo- sure permissible shall be no greater than the following:

       Commercial/High

       Risk areas 1 foot in 10,000 feet

       Suburban 1 foot in 7,500 feet

       Rural 1 foot in 5,000 feet

       
       

12. Rule 21HH-6.04, F.A.C., provides:

    
    

    21HH-6.04 Vertical Control and Topographic Surveys.

    1. All surveys in this class shall show the datum, including a description of the bench- mark(s) upon which the survey is based. A second benchmark, where practicable, shall be used on each survey to confirm the level run and first benchmark.

    2. Vertical Control Surveys: the level loop closure in feet must be accurate to a standard of plus or minus .05 times the square root of distance in miles ( plus .05V miles).

13. Rule 21HH-6.06(7), F.A.C., provides: When special conditions exist that ef-

    fectively prevent the survey from meeting these minimum standards, the special condi- tions and any necessary deviation from the standards shall be noted upon the drawing.

    
    

14. The Lucy Street Sketch of Survey violated Rules 21HH- 6.03(1), (7), (8), (18), and (19), and Rule 21HH-6.06(7), F.A.C. The Florida Fruitland Waiver of Plat violated Rules 21HH-6.03(1), (6), (7), (8), (18), and (20), and Rules 21HH-6.04(1) and (2), F.A.C. The 20301 S.W. 117 Avenue Sketch of Survey violated Rules 21HH-6.03(1), (7), (18), and (19), F.A.C.

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order:

1. Suspending Respondent's license for a term of one year.

2. Upon the expiration of the term of suspension, Respondent's license be placed on probation for a term of three (3) years, with the requirement that, upon the Board's request, Respondent submit copies of any land survey projects and field notes to the Board for review; and

   
   

3. Imposing an administrative fine of Fifteen Hundred ($1,500.00) Dollars.

DONE AND ENTERED this 22nd day of August, 1985, at Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1985.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Stephen L. Raskin, Esquire 7200 Bird Road

Miami, Florida 33155

Allen R. Smith, Jr., Executive Director Board of Land Surveyors

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-003683

Orders for Case No: 84-003683