STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF ) PROFESSIONAL LAND SURVEYORS, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0519

)

NARCISCO J. RAMIREZ, )

)

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 June 6, 1985 in Miami Florida.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Peter Kneski, Esquire

626 Biscayne Boulevard

19 West Flagler Street Miami, Florida 33130

BACKGROUND

By administrative complaint filed on January 29, 1985, petitioner, Department of Professional Regulation, Board of Professional Land Surveyors, has charged that respondent, Narcisco J. Ramirez, a licensed land surveyor, had violated various agency rules and provisions within Chapters 455 and 472, Florida Statutes, for which disciplinary action against his license should be taken. In brief, petitioner contended that respondent was "grossly careless" and

"negligent," and failed to practice land surveying with the level of care and skill which is recognized by a reasonably prudent similar land surveyor as being acceptable under similar conditions and circumstances on two jobs undertaken around 1984. Such conduct, according to the complaint, violated Rules 21HH-2.01(3) and (5), 21HH-6.03(1), (2), (4), (6)-(8), (12), (18)-(20), and 21HH-6.06(1), Florida

Administrative Code, and Sections 455.227(1)(b), 472.027 and 472.033(1)(a) 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 February 13, 1985, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated March 19, 1985; the final hearing was scheduled for May 8, 1985 in Miami, Florida. At the request of the parties the final hearing was rescheduled to June 6 at the same location.

At final hearing petitioner presented the testimony of Frank Makowski and James Beadman and offered petitioner's exhibits 1-8. All were received in evidence except exhibits 4 and 8, upon which a ruling was reserved.

Respondent testified on his own behalf and offered respondent's exhibit 1 which was received in evidence. A motion for directed verdict (dismissal) made by respondent at the conclusion of petitioner's case in chief was denied.

The transcript of hearing was filed on July 1, 1985.

Proposed findings of fact and conclusions of law were filed by petitioner on July 22, 1985. 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. 1/

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.

FINDINGS OF FACT

1. At all times relevant hereto, respondent, Narcisco

   J. Ramirez, held land surveyor license number LS0002779

   issued by petitioner, Department of professional Regulation, Board of Professional Land Surveyors. Respondent currently operates a land surveying firm known as South Atlantic Services of Florida, Inc. located at 7350 Southwest 41st Street; Miami, Florida.

   
   

2. Respondent received a two year degree in civil engineering from City College of San Francisco in 1969 and has worked for various firms as a land surveyor in the Miami area since 1971. He has been a registered land surveyor in Florida since July, 1975.

   
   

3. In March, 1984, respondent was contacted by a real estate salesman and requested to perform a "boundary survey" and "sketch" of a parcel of land owned by one M. P. Smith McNiely. The land in question involved various lots, including Lots 23, 25-30, 34-36 and 38 located in a subdivision known as DeSoto Heights which lies adjacent to Southwest 304th Street, Southwest 105th Terrace, and Southwest 168th Street in Dade County, Florida, just north of the City of Homestead. The property was to be sold, and the survey was intended to assist the seller in determining a sales price on the property. Ramirez interpreted the request to mean that only a "preliminary sketch" would be initially done, and if requested by the owner, a "complete survey" would be performed at a later date. He was paid

   $650 for the initial work, and expected an additional fee of $2,500 to $3,000 for the complete survey. According to Ramirez, a preliminary sketch is not as accurate as a complete survey, has substantially less information, may contain errors, and does not require a certification by the surveyor that it meets all required professional standards of surveying.

   
   

4. Ramirez assigned the field work to an employee named Roberto Collado, who no longer lives in Florida. The field work consisted of determining the property corners, and providing a sketch to the real estate salesman.

   Ramirez did not certify that minimum technical standards had been met but did sign and seal the drawing on March 22, 1984. At the same time he provided the following certification:

   
   

   I HEREBY CERTIFY: that the attached sketch of survey represents a recent survey made under my direction, and is true and correct to the best of my knowledge and belief.

   There are no encroachments unless shown thereon.

   
   

   Ramirez also added the following in bold lettering:

   
   

   NOTE: BOUNDARY SURVEY ONLY. No elevations secured or any other featured at the owners representative s request.

   
   

5. A short time later, Frank Makowski, also a registered land surveyor and a former professional colleague of Ramirez some ten years earlier was contacted by an attorney (David Liebman) who was handling the sales transaction of McNiely's property. The closing was being held up because Ramirez's survey reflected a house sitting on both lots 36 and 37. Makowski was requested to verify the encroachment onto lot 36, and to ascertain the true location of the property boundaries.

   
   

6. Makowski initially contacted Ramirez and requested a copy of his sketch and field notes. These were supplied by Ramirez, who gave no indication to him that the work was only "preliminary" in nature. Makowski then sent out a field team to survey the property. It found that the west boundary on the Ramirez survey was actually thirty-three feet off, which caused the purported encroachment on lot 36.

   
   

7. The sketch made by Ramirez was deficient in a number of respects as established by uncontradicted expert testimony. To begin with, the parties have stipulated that the survey did not comply with the minimum technical standards for land surveying as set forth in Chapter 21HH- 6, Florida Administrative Code. These include Rules 21HH- 6.03(1), (2), (4), (6)-(8), (12), (18)-(20), and 21HH- 6.06(1), Florida Administrative Code, as alleged in the administrative complaint. For example, it contained no certification, did not reflect all bearings and angles, and monumentations were not set. In short, the Ramirez survey technique and procedure was not in conformance with the procedure required by generally accepted and prevailing standards of land surveying. Moreover, even though it was identified as a "boundary survey;" expert testimony established that the project was indeed a survey within the meaning of the term and it had to meet such technical standards or plainly provide a disclaimer to indicate that such standards were not met.

   
   

8. In September, 1983, respondent was engaged by an engineering firm to "secure ground elevations along the above property (Southwest 168th Street and Southwest 192nd Avenue, Dade County) and then relate said elevations to a Dade County Bench Mark," and to "prepare a sketch of survey showing said existing ground elevations." For this he was to be paid $150. The property was owned by Alfred and Linda Wilson.

   
   

9. Ramirez first obtained by telephone a bench mark on September 30, 1983; from the Dade County Surveying Department and then sent a field crew to complete the task. The bench mark he selected was across a canal and some three-quarters of a mile from the property in question in an area with heavy undergrowth. This made an accurate measurement more difficult to perform.

   
   

10. The accuracy of vertical control surveys (elevations) is essential since this determines whether a parcel of land must have fill added in order to install a septic tank and well. It also affects the flood insurability of a home. Such surveys are subject to the minimum technical standards of the profession, as adopted by agency rules, unless the survey is a "specific purpose survey." In that event the same must be clearly stated on the face of the survey. In this case Ramirez, merely noted on the face of the sketch: "preliminary sketch, only elevations are included in this sketch of survey, no horizontal distances were measured nor controls set and distances shown along the sketch are for location purposes only." He also certified that "the elevations shown refer to a National Vertical Geodetic Datum of 1929, Bench Mark, were secured by us under my direction and are true and correct to the best of my knowledge and belief." Ramirez considered the project to be a "special purpose sketch" and therefore did not believe he had to certify that minimum technical standards had been met. Indeed, he conceded that such standards had not been met in preparing the documents.

    
    

11. Makowski was requested to perform a survey on the Wilson property on June 12, 1984 to verify the accuracy of Ramirez s survey. He found the actual elevations to be approximately two feet lower than those reflected on Ramirez's sketch. 2/ The accuracy of Makowski's findings was corroborated by a survey previously performed by another surveyor in 1979. That survey, which is a public

    record on file with the Dade County Subdivision Control Department, indicated that because of the property's low elevation, fill was required to meet flood criteria.

    Through the testimony of Makowski and another expert land surveyor, James E. Beadman, it was established without contradiction that Ramirez's work failed to comport with minimum technical standards of the land surveying profession. For example, Ramirez had insufficient field notes, he used too few turning points, and did not perform a loop closure. Further, there is no bench mark description or certification by Ramirez on the survey, and Ramirez used a Linker rod to transfer elevations from one bench mark to another in contravention of accepted standards.

    
    

12. Had Ramirez desired to qualify his elevation survey in accordance with agency rules, he should have identified his survey as a topographic survey and indicated that improvements were not located. By calling it an elevation survey, Ramirez did not change its true character of being a topographic survey.

    
    

13. Rule 21HH-6.06, Florida Administrative Code, requires that when a survey is not performed, a surveyor should "state that such sketch is not a survey" on the face of the sketch. All other surveys must meet minimum technical standards, and by signing and sealing the drawings, a surveyor certifies as such.

    
    

14. Ramirez justified his work in the McNiely project as being simply preliminary in nature. If he conducted a complete survey at a later time, he would then obtain more information, and correct any errors present on the initial drawings. Similarly, he viewed the Wilson survey as a special purpose sketch," and one not requiring compliance with minimum technical standards.

    
    

15. Ramirez has performed hundreds of surveys in the past fifteen years; and there is no evidence of any formal disciplinary action having been instituted against him for negligence or misconduct.

    
    

16. Both surveys were eventually performed in an accurate manner by Makowski. There were no complaints filed against Ramirez by either client. The complaint herein stems from Makowski who reported the alleged violations to petitioner after reviewing Ramirez's work.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. By the administrative complaint filed herein, Ramirez is charged with two sets of violations. First, it is alleged that on the elevations job, he "failed to reflect the bench mark utilized for purposes of determining elevation," and performed the survey in a grossly careless and negligent manner and ... failed to practice land surveying with the level of care and skill which is recognized by a reasonably prudent similar land surveyor as being acceptable under similar conditions and circumstances." In conjunction with the McNiely project, it is charged that Ramirez "failed to meet minimum technical standards for land surveying," including those prescribed in Rules 21HH-6.03(1); (2), (4), (6)-(8), (12), (1B)-(20) and 21HH-6.06(1), Florida Administrative Code and performed the survey "in a grossly careless and negligent manner and...failed to practice land surveying with the level of care and skill which is recognized by a reasonably prudent similar land surveyor as being acceptable under similar conditions and circumstances." Petitioner further alleges this conduct collectively constitutes a violation of Sections 455.227(1)(b), 472.027, and 472.033(1)(a) and (h); Florida Statutes, and Rule 21HH-2.01(3) and (5), Florida Administrative Code. The evidence will accordingly be examined to determine if the facts establish a violation of the foregoing rules and statutes.

    
    

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

    
    

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

    
    

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

       
       

       (h) 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 perti nent information provided by land surveyors under the authority of ss. 472.001-472.039.

       
       

       In this regard, the board has promulgated minimum technical standards in Chapter 21HH-6, Florida Administrative Code.

       In addition to these, various grounds for disciplinary action are codified in Rule 21HH-2.01, Florida Administrative Code.

       
       

21. McNiely Survey - The evidence clearly and convincingly reveals that Ramirez violated ten minimum technical standards on the project, namely, those enumerated in Rules 21HH-6.03(1), (2), (4), (6)-(8); (12); (18)-(20); and Rule 21HH-6.06(1), Florida Administrative Code. By doing so, he was "negligent" in the practice of land surveying within the meaning of Rule 21HH-2.01(3), Florida Administrative Code. By violating the foregoing rules, Ramirez is similarly guilty of violating Subsection 472.033(h), Florida statutes; which makes it unlawful to violate a provision within Chapter 472 (s. 472.027). However, there is insufficient evidence to support the charge of "misconduct" as defined in Rule 21HH-2.01(5) or that Ramirez intentionally violated a board rule. Therefore, the charge that he violated Subsections 455.227(1)(b) and 472.033(1)(a) must fail.

    
    

22. Wilson Survey - The evidence clearly and convincingly discloses that Ramirez failed to have due regard for acceptable standards of land surveying principles and was negligent in performing this survey by failing to adhere to minimum technical standards, and in so doing, he has violated Subsection 472.033(1)(h) and Rule 21HH-2.01(3). However, the evidence does not support a

    finding of guilt as to Subsections 455.227(1)(b) and 472.033(1)(a) since it was not shown that such rule violations were intentional.

    
    

23. Ramirez has performed hundreds of surveys since he began his practice without disciplinary action. Here it is evident that he was extremely careless in supervising the work of his crews, in understanding exactly when the minimum technical standards must be met, and the type of disclaimer required when not doing so. Under these circumstances a $1000 administrative fine and two years probation are an appropriate penalty.

    
    

24. Petitioner's exhibits 4 and 8 are hereby received in evidence since the undersigned is satisfied that there is "sufficient evidence to support a finding that the matter in question is what its proponent claims." Section 90.901, Florida Statutes.

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 orders and that he be fined $1000 and placed on two years probation. All other charges should be DISMISSED.

DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida.

Hearings

Hearings

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 7th day of August, 1985.

ENDNOTES

1/ The record in this cause was kept open after hearing for ten days so that respondent's counsel could take the deposition of witness Beadman. This was done within the prescribed time period, but respondent did not order a transcript of the deposition. Thereafter, the parties agreed to file proposed findings of fact and conclusions of law by July 22, 1985. The transcript of the deposition was eventually filed on July 31, 1985.

2/ When Ramirez learned that petitioner was investigating this project, he sent a field team to the Wilson's property in December, 1984 to verify the earlier calculations. The crew again improperly concluded that the elevations were correct.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Peter Kneski, Esquire 626 Biscayne Boulevard

19 West Flagler Street Miami, Florida 33130

Docket for Case No: 85-000519

Orders for Case No: 85-000519