STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

v. ) CASE NO. 85-0285

)

BERTIN C. TASH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on

August 1, 1985 in West Palm Beach Florida .

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Bertin C. Tash, pro se

1127 Broadway

Riviera Beach, Florida 33040 BACKGROUND

By administrative complaint filed on November 19, 1984, petitioner, Department of Professional Regulation, Board of Professional Land Surveyors, has charged that respondent, Bertin

1. Tash, a licensed land surveyor, had violated various rules and provisions within Chapters 455 and 472, Florida Statutes, and agency rules, for which disciplinary action against his license should be taken. In brief, petitioner contended that while performing a survey in Palm Beach County in November, 1983, respondent did not comply with minimum technical standards for land surveying as set forth in Chapter 21HH-6, Florida

   Administrative Code. By so doing, petitioner alleges that respondent violated Rule 21HH-2.01(3) and Chapter 21HH-6,1 Florida Administrative Code, and Sections 455.227(1)(b), 472.027 and 472.033(1)(a), (g), and (h), Florida Statutes.

   Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings by petitioner on January 23, 1985, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated February 6, 1985, the final hearing was scheduled for August 1, 1985 in West Palm Beach, Florida.

   
   

   At final hearing petitioner presented the testimony of Karen L. Kennet and respondent and offered petitioner's exhibits 1-4. All were received in evidence. Exhibits 1 through 3 are the depositions of George M. Cole, Jr., Allen R. Smith, Jr. and Susan Love, respectively. Respondent testified on his own behalf and offered respondent's exhibit 1 which was received in evidence.

   
   

   The transcript of hearing was filed on August 22, 1985.

   Proposed findings of fact and conclusions of law were filed by petitioner on September 6, 1985.2 A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

   
   

   At issue herein is whether respondent's license as a registered land surveyor should be disciplined for the alleged violations set forth in the administrative complaint.

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant hereto, respondent, Bertin C. Tash, held land surveyor license number LS0002292 issued by petitioner, Department of Professional Regulation, Board of Professional Land Surveyors. Respondent currently resides at 1127 Broadway, Riviera Beach, Florida. Tash has held a license with the state since July 2, 1970, and has been in the surveying profession for some twenty-eight years.

      
      

   2. On or about November 11, 1983, respondent was contacted by a local mortgage broker and requested to perform a survey on a residence located at 2814 Saginaw Avenue, West Palm Beach, Florida. A survey was needed since the owner of the residence intended to refinance his property. Tash performed the survey,

      turned the same over to the broker, and was paid $125 for his services. The drawing was signed and sealed by Tash, and contained the following notation above the certification: "No Corner's Set-All Rights Reserved." There was no mention as to whether the minimum technical standards had been met. On at least three places on the document, Tash referred to the drawing as a "survey."

      
      

   3. On June 7, 1984, Craig L. Wallace, a land surveyor in Lake Park, Florida, sent a copy of Tash's drawing to the Board's Executive Director and asked if the notation above the certification was permissible, and whether Tash's failure to refer to minimum technical standards was correct. This inquiry prompted the instant proceeding and resulted in the issuance of an administrative complaint.

      
      

   4. It is undisputed that the document prepared by respondent is a survey and subject to the minimum technical standards set forth in Chapter 21HH-6, Florida Administrative Code. Expert testimony by witness George M. Cole, Jr. Established that the drawing did not conform with the minimum technical standards in various respects. It did not contain a certification that the minimum technical standards had been met or a description of the type of survey being depicted. It did not reflect the measured distance to the nearest intersection of a street or right-of-way nor did it depict the entire lot being surveyed. Additionally, only one angle was shown on the drawing although agency rules require that all angles and bearings be shown. Finally, there was no boundary monument set as required by the standards. These are required unless monuments already exist at such corners. Although Tash pointed out that fence posts embedded in concrete were already on the corners of the property, agency rules still require that alternative monumentation be set. All of the foregoing deficiencies are violations of the minimum technical standards required for surveys. However, none were intentionally violated.

      
      

   5. Respondent readily acknowledged that he performed the survey in question. However, he considered the survey to be "minor" since two had previously been performed on the same lot, and his was only for the purpose of refinancing the property.

      He attributed any deficiencies to poor judgment rather than an intentional violation of the law. Tash has been a professional land surveyor for some twenty-eight years, and there is no evidence that he has been subjected to disciplinary action on any prior occasion.

   6. The complaint herein was initiated by another licensed surveyor and not by the consumer who used the survey. The survey was apparently satisfactory as far as the mortgage broker was concerned, and no problems arose at closing.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

      
      

   8. According to the administrative complaint, Tash is charged with violating Sections 455.227(1)(b), 472.027 and 472.033(1)(a), (g), and (h), Florida Statutes,3 Rule 21HH-2.01(3) and certain minimum technical standards in Chapter 21HH-6, Florida Administrative Code. As clarified by counsel during hearing these minimum standards include those set forth in Rules 21HH-6.02(7) and 21HH-6.03(1), (4), (7), (8), (11), (18), and (19), Florida Administrative Code.

      
      

   9. Subsection 455.227(1)(b), authorizes disciplinary action against a licensee whenever "the licensee has intentionally violated any rule adopted by the board. "

      
      

   10. Subsection 472.033(1) prescribes a number of grounds for disciplinary action against a registered land surveyor. Paragraphs (a), (g) and (h) therein make unlawful the following conduct:

       
       

       1. Violation of any provision of s. 472.031 or s. 455.227(1):

          
          

          * * *

          
          

          1. Upon proof that the licensee is guilty of fraud or deceit, or of negligence or incompetency, or misconduct in the practice of land surveying

             
             

          2. Failing to perform any statutory or legal obligations placed upon a licensed land surveyor violating any provision of this chapter, a rule of the board or department. . . .

          
          

          Subsection 472.027 imposes the following duty upon the board:

          The board shall adopt rules relating to the practice of land surveying which establish minimum technical standards to assure the achievement of no less than minimum degrees of accuracy, completeness, and quality in order to assure adequate and defensible real property boundary locations and other pertinent information provided by land surveyors under the authority of ss.

          472.001-472.039.

          
          

          In this regard, the Board has promulgated various minimum technical standards in Rule 21HH-6.03, Florida Administrative Code. Finally, Rule 21HH-2.01, Florida Administrative Code, enumerates certain proscribed conduct by licensees including a failure "to follow minimum technical standards for land surveying."

          
          

   11. The evidence fails to support a finding that Tash intentionally violated any agency rule. Therefore, the contention that he has violated Subsections 455.227(1)(b) and 472.033(1)(a) must fail. Similarly, there can be no violation of Section 472.072 since this section merely imposes a duty upon the Board of Professional Land Surveyors to adopt minimum technical standards for land surveyors. However, there is clear and convincing evidence that Tash violated Subsection 472.033(1)(h) by failing to adhere to the minimum technical standards set forth in Rule 21HH-6.03(1), (4), (7), (8), (11),

       (18) and (19) on the survey in question.4 By doing so, Tash has also violated Rule 21HH-2.01(3), Florida Administrative Code, which requires a licensee to adhere to all minimum technical requirements. Finally, it is alleged that Tash was guilty of "fraud or deceit, of negligence, incompetency, or misconduct in the practice of land surveying." (s. 472.033(1)(g), Florida Statutes) Clearly, the evidence does not sustain the charge of fraud, deceit, incompetency or misconduct.5 It does support the charge of negligence in that Tash was negligent in failing to meet all minimum technical standards, and in failing to utilize due care on the project.

       
       

   12. The violations on the mortgage survey performed in 1983 appear to be the only blemish on Tash's record since he was first licensed some fifteen years ago. Petitioner suggests a

       $500 fine and two year probationary period are an appropriate penalty. However, given the fact that the purchaser of the survey was not harmed and never complained about the same, and the survey in question was used to successfully refinance the

       property, it is recommended that a more appropriate penalty is a

       $500 administrative fine and a 90-day probationary period.

       
       

   13. A final matter requiring comment is the use of depositions rather than live testimony by petitioner to establish the alleged violations. These depositions were noticed on July 16 for hearing in Tallahassee on July 22, 1985, and not surprisingly, respondent was unable or unwilling to travel some 400 miles to attend the same. Since most of petitioner's case was presented by deposition, it hindered respondent's ability to confront the witnesses who claimed the violations had occurred. While there is nothing legally impermissible in doing this, and economics presumably dictated this choice, a better and more equitable practice is to allow a respondent to participate in the depositions by telephone conference call so that he can confront his accuser.6

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that respondent be found guilty as set forth in the conclusions of law portion of this order. The remaining charges be DISMISSED. Respondent's license should be placed on probation for ninety days and he should be required to pay a

$500 administrative fine.

DONE and ORDERED this 18th day of September, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1985.

ENDNOTES

1/ As clarified during the course of the hearing, petitioner contends the standards in Rules 21HH-6~02(7) and 21HH-6.03(1), (4), (7), (8), (11), (18) and (19) were not met.

2/ Respondent filed a letter on August 16, 1985, which responded to the deposition testimony offered by witness Cole.

3/ Although the complaint refers to Section 472.033(a), (g) and (h), it is assumed that petitioner intended to rely upon 472.033(1)(a), (g) and (h).

4/ The allegation at hearing (but not specifically set forth in the complaint) that Rule 21HH-6.02(7) was also violated must fail since that Rule merely contains the definition of a survey.

5/ To be guilty of misconduct, Tash would have had to have been "untruthful, deceptive, or misleading in any professional report." Subsection 472.033(1)(g). However, this was not shown to be the case.

6/ The undersigned recognizes that a deposition by conference telephone call is more expensive, and that lay persons are generally unfamiliar with interrogating a witness in a logical and relevant manner, responding to and making objections, and the like. Nonetheless, this procedure is more compatible with the notions of fair play and due process.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esq.

130 N. Monroe St. Tallahassee, FL 32301

Mr. Bertin C. Tash 1127 Broadway

Riviera Beach, FL 33040

Docket for Case No: 85-000285

Orders for Case No: 85-000285