STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-4494

)

GUSTAV A. FIMMEL, III, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this cause on March 29, 1985, in Orlando, Florida before Diane A. Grubbs, the assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Theodore Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Gustav A. Fimmell, III

59 Robbins Road

Somerville, New Jersey 08876

and

120 Pearl Lake Causeway

Altamonte Springs, Florida 32714 ISSUE

Whether respondent failed to perform certain land surveying services which he had agreed to perform and for which he was paid, and, if so, whether disciplinary action should be taken against Respondent's license.

BACKGROUND

By an Administrative Complaint filed November 19, 1984, respondent was charged with violating Section 472.033(1)(a),(g) and (h), Florida Statutes, Section 455.227(1)(b), Florida Statutes, and Rules 21HH-2.01(3) and (5), Florida Administrative Code, by failing to perform certain professional services for which he was paid. On December 18, 1984, respondent disputed the facts alleged and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. On December 28, 1984, the matter was referred to the Division of Administrative Hearings for further proceedings.

At the hearing the petitioner presented the testimony of two witnesses: Alvin Lewis Smith, an investigator with the Department of Professional

Regulation, and Joseph L. Abrams, a land developer. Petitioner's Exhibits 1 through 5 and 7 through 9 were admitted into evidence. Respondent testified on his own behalf and presented the testimony of Burl M. Drennen, a draftsman, designer and builder.

The petitioner submitted proposed findings of fact and conclusions of laws; the respondent did not. The petitioner's proposed recommended order has been carefully considered, and each proposed finding of fact has been addressed, directly or indirectly, in this recommended order, except those findings that are cumulative, unnecessary, or irrelevant. A proposed finding of fact has been specifically rejected if a contrary finding has been made.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, respondent held a license to practice land surveying in the State of Florida.

   
   

2. In March 1984, Joseph L. Abrams a land developer, hired the respondent to perform certain professional services in connection with a proposed development known as Doug's Unit Number One. Mr. Abrams hired the respondent because he had previously performed land surveying services for Mr. Abrams and had done a good job.

   
   

3. Doug's Unit Number One involved six acres of land which had been preliminarily subdivided by an engineer into 14 separate lots. The preliminary drawing by the engineer, showing set backs, easements, and other matters, had been approved by the City of Winter Springs, but Mr. Abrams needed a sealed drawing to record. He therefore hired the respondent as a professional surveyor, to describe the lots in surveying terms and prepare a sealed set of drawings.

   
   

4. On March 27, 1984, the respondent prepared a bill for the services and itemized the total cost of $756 as follows: drafting of S/D on linen, $250; cost of linen $6; engineering, calculations telephone calls specifications, Winter Springs conference, etc., $500. Mr. Abrams paid the bill the same day. Mr. Abrams was informed that respondent had paid Burl (Mike) Drennen to do the drafting, and, as soon as the drafting was done, either respondent or Mr. Drennen would deliver the drawings, properly sealed, to Mr. Abrams. The drawings were to be delivered in two to three weeks. Respondent also informed Mr. Abrams that respondent was leaving for New Jersey and would be gone for a few weeks. Respondent gave Mr. Abrams his phone number in New Jersey and Mr. Drennen's phone number.

   
   

5. After two weeks elapsed and the drawings had not been delivered, Mr. Abrams began calling the respondent and Mr. Drennen. Sometime in April or May, Mr. Abrams was able to contact respondent in New Jersey and the respondent explained that he would be unable to return to Florida for another two to three weeks due to his wife's serious illness. Mr. Abrams also contacted Mr. Drennen, who informed him that he would not deliver the drawings because he had not been fully paid for his drafting services and because he would have to receive authorization from the respondent before the drawings were released since the respondent had hired him. Mr. Drennen told Mr. Abrams that he would try to contact respondent to get the authorization to release the drawings, but Mr. Drennen was unable to contact the respondent. However after several more conversations with Mr. Abrams, Mr. Drennen agreed to deliver the drawings if Mr. Abrams paid him the remaining money he was owed. 1/

6. On June 6, 1984, Mr. Drennen delivered the drawings and was paid $180 by Mr. Abrams. However, when Mr. Abrams looked over the sheet, he realized that the sheet had not been sealed. He tried to contact the respondent, and when he was unable to do so, he decided to go to another surveyor. The new surveyor could not simply take the drawing and seal it; he had to do the entire project over again. Mr. Mims, the new surveyor, charged $1,250 which was paid in October or November of 1984 and the sealed drawings were delivered and recorded on December 20, 1984.

   
   

7. By letter dated June 7, 1984, Mr. Abrams filed a complaint with the Department of Professional Regulation, and on August 15, 1984, Mr. Alvin Lewis Smith, an investigator with the Department, contacted respondent by telephone in New Jersey to inquire about the matter. The respondent admitted that he had not completed the project, but he stated that he had his seal in New Jersey and, if Mr. Abrams had sent the drawings to him, he could have signed and sealed the drawings and sent them back to Mr. Abrams. However, when asked if he had done any field work for the project, respondent said that he had not and that he couldn't seal the drawings because he hadn't done the field work. Nevertheless, on August 16, 1984, respondent wrote to Mr. Abrams stating that he had taken his seal to New Jersey and that he could sign and seal the linen and have it back to Mr. Abrams in two days if Mr. Abrams would send the drawings to him by Federal Express.

   
   

8. At the hearing the respondent testified that the $756 payment was for drawing up the plat and performing calculations and engineering work on the project, but it was not for doing the field work. However respondent acknowledged that the field work had to be done before the plat could be sealed and recorded. All the other evidence and testimony presented at the hearing indicates that the respondent agreed to deliver drawings to Mr. Abrams that were properly prepared and sealed for recording. It is therefore apparent that the $756 paid by Mr. Abrams to respondent was to cover all the work necessary, including the field work, for the plat to be recorded. Without being sealed, the drawings were useless.

   
   

9. During the time of this incident the respondent had personal problems which required him to stay in New Jersey. His wife was quite ill and his wife's parents' estate had to be settled. Respondent has been a registered surveyor for over 30 years and, until the instant action, had never had a complaint filed against him.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.

    
    

11. Section 472.033(1), Florida Statutes, sets forth the acts which constitute grounds for which the Board of Professional Land Surveyors may take disciplinary action. Disciplinary action may be imposed "[u]pon proof that the licensee is guilty of fraud or deceit, or of negligence, incompetency; or misconduct, in the he practice of land surveying. . . ." Section 472.033(1)(g). Rule 21HH-2.01 (3), Florida Administrative Code states that a land surveyor shall not be negligent in the practice of land surveying and defines negligence as the failure "to utilize due care in performing in a land surveying capacity" or the failure "to have due regard for acceptable standards of land surveying principles." Rule 21HH-2.01(5), Florida Administrative Code, states that a registered land surveyor shall not commit misconduct and requires that

    registered land surveyors "be guided in all their professional relations by the highest standards of integrity and shall act in professional matters for each client or employer as faithful agents or trustees." Pursuant to Section 472.033(1)(h), disciplinary action may also be imposed for "[f]ailing to perform any statutory or legal obligation placed upon a licensed land surveyor [or] violating any provision of [Chapter 472], a rule of the board or department, or a lawful order of the board or department. "

    
    

12. By failing to perform the work he contracted to do, and by later attempting to remedy the situation by offering to sign and seal the plat without performing the required field work, the respondent was guilty of misconduct and negligence in the practice of surveying, in violation of Rule 21HH-2.01(3) and

(5) and Section 472.033(1)(g), guilty of failing to perform a statutory or legal obligation placed upon a licensed surveyor, and guilty of violating rules of the board, as set forth in Section 472.033(1)(h).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, and upon due consideration of respondent's personal circumstances at the time of this incident and respondent's previously unblemished record, it is

RECOMMENDED that a final order be entered finding respondent guilty of those acts set forth in Sections 472.033(1)(g) and 472.033(1)(h), Florida Statutes, reprimanding the respondent, and placing him on probation for a period of one year with such terms and conditions as may be deemed necessary by the Board of Professional Land Surveyors.

DONE and ENTERED this 23rd day of August, 1985, in Tallahassee Leon County Florida.

DIANE A. GRUBBS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1985.

ENDNOTE

1/ The respondent already had paid Mr. Drennen $200 for his services, but Mr. Drennen testified that the $200 was just an initial payment and that $180 more was due.

COPIES FURNISHED:

Theodore Gay, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Gustav A. Fimmel, III

58 Robbins Road Somerville, N.J. 08876

and

120 Pearl Lake Causeway

Altamonte Springs, Florida 32714

Allen R. Smith Executive Director

Department of Professional Regulation

Board of Land Surveyors

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF PROFESSIONAL LAND SURVEYOR

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PROFESSIONAL LAND SURVEYORS,

Petitioner,

vs. DOAH CASE NO. 84-4494

DPR CASE NO. 0049604

GUSTAV A. FIMMEL, III,

Respondent.

/

FINAL ORDER

Respondent, Gustav A. Fimmel,III, is a licensed land surveyor in the State of Florida having been issued license number LS 000855. Petitioner filed an administrative complaint seeking suspension, revocation, or other disciplinary action against the licensee.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to Section 120.57(1), Florida Statutes; it is attached to and made a part of this final order.

The Board of Professional Land Surveyors met on September 6, 1985 in Tallahassee, Florida, to take final agency action. the Petitioner was represented by Joseph W. Lawrence, II, Esquire; the Respondent was not present. The Board has reviewed the entire record in this case.

The Board adopts the findings of fact and conclusions of law of the Recommended Order. The Board adopts the recommended penalty of reprimand and probation of Respondent; however, the Board increases the probation period from a period of 1 year to a period of 27 months. As justification for increasing the recommended penalty, the Board relies upon the portions of the records indicating that Respondent had a draftsman prepare the plat prior to the field work being performed. In the opinion of the Board having a draftsman prepare a plat prior to field work indicates gross error, negligence, and extremely poor practice. For this reason, the Board feels that Respondent would benefit from a extended term of probation which incorporates the standard process utilized by the Board of reviewing surveys and plats of persons having been placed on probation.

Wherefore, it is hereby Ordered that Respondent be reprimanded, and placed on probation for a period of 27 months from the date of filing of this final order, during which time he shall submit 25 surveys, representative of his land surveying practice which shall be accompanied by field notes and record plats, to the Board for its review. If Respondent has prepared record plats during

this period of probation, they should be submitted as part of the 5 surveys. Additional information regarding the surveys may be requested. Five (5) surveys shall be submitted within 3 months from the filing of the final order; thereafter, 5 surveys or plats shall be submitted at 6 months intervals during the period of probation. Respondent shall attend the first available continuing education seminar in his area under minimum technical standards within 12 months from the filing of this order. Evidence of Respondent's attendance and successful completion of the course (including examination) shall be furnished to the Board through the proctor or instructor of the continuing education course.

Respondent may appeal this order within 30 days from its filing pursuant to Section 120.68(2), Florida Statutes and Florida Rule of Appellate Procedure

9.110 (b)(c).

DONE AND ORDERED this 1st day of October, 1985.

BOARD OF PROFESSIONAL LAND SURVEYORS

Allen R. Smith Jr., Executive Director

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Certified Mail to Gustav A. Fimmel, III, 58 Ribbins Road, Somerville, New Jersey 08876 and 120 Peral Lake Causeway, Altamonte Springs, Florida 32714, Diane A. Grubbs, Hearing Officer Division of Administrative Hearings, Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301 and Joseph W. Lawrence II, Esquire, Department of Professional Regulations, 130 North Monroe Street, Tallahassee, Florida 32301 this 1st day of October, 1985.

Docket for Case No: 84-004494

Orders for Case No: 84-004494