STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-5111

)

DANIEL E. LEMONDE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Venice, Florida, on March 22, 1988, before Arnold H. Pollock. The issue for consideration was whether Respondent's license as a land surveyor in the State of Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint.

APPEARANCES

For Petitioner: Bill O'Neil, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Charles Cheves, Esquire

341 Venice Avenue, West Venice, Florida 34285

BACKGROUND INFORMATION

On September 28, 1987, the Petitioner, Department of Professional Regulation, filed an Administrative Complaint against the Respondent alleging, in three counts, that he violated Section 472.033(1), Florida Statutes, by making or filing a record or report which he knew to be false; being guilty of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of land surveying; or failing to perform a statutory or legal obligation placed upon land surveyors; and/or by violating a rule of the Board, respectively.

Respondent denied the allegations and demanded an Administrative Hearing which was originally set for January 19, 1988. However, based on his motion for continuance the case was postponed until March 22, 1988, when it was held as scheduled.

At the hearing, Petitioner presented the testimony of the Respondent, Daniel E. Lemonde; Fred W. Repass, a land surveyor employed by the Respondent in his Martin County office; and James Anderson, an Environmental Specialist II with the St. Lucie Health Department division of the Florida Department of Health and Rehabilitative Services. Petitioner also introduced Petitioner's Exhibits 1 through 7, the last being the deposition of John Q. Quillen.

Respondent testified in his own behalf and presented the testimony of Mr.

Repass and Raymond T. Briggam, a registered land surveyor, and introduced Respondent's Exhibit A. Respondent requested that the undersigned take official recognition of Rule 10D-6, Florida Administrative Code, Rule 21HH-2, Florida Administrative Code, answers to interrogatories propounded by the Respondent, and Section 472.005(4)(a) and (b), Florida Statutes. Official recognition was taken as requested without objection.

Subsequent to the hearing, no transcript of proceeding was furnished.

However, the parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained in the Administrative Complaint, the Petitioner, Board of Professional Land Surveyors, was the agency charged with regulating the practice of land surveying in Florida and the Respondent was a licensed land surveyor under license no. LS0002909.

   
   

2. Respondent has been a surveyor since 1975 in Venice, Florida. In 1986, at the time in question here, Respondent was in partnership with another surveyor, Mr. Bolton, the owner of a surveying company in Dade County, Florida. The joint venture between Mr. Lemonde and Mr. Bolton was called Lemonde- Biscayne, Inc. and was operating in Martin County, Florida, near the St. Lucie County line. Respondent was President of the corporation and a working shareholder. Mr. Bolton, the Vice President, was located in Miami, Florida. Respondent also operated Lemonde Surveying, Inc., of which he was the President and sole working share holder, in Venice.

   
   

3. Mr. Bolton, is a registered land surveyor and was an overseer of the day to day operations of the surveying company working out of the Martin County office. At that time, Mr. Ellis was office manager of the corporation in the Martin County office serving along with a secretary and a draftsman. Field surveys were accomplished by surveying crews, none of whom were licensed surveyors.

   
   

4. At the time in question, Respondent lived in Venice and traveled to the Stuart office for two or three days of each week. Mr. Bolton also came up from Miami to the Stuart office for one to two days each week. Lemonde-Biscayne, Inc. had been doing business in Martin County for approximately two years. The office was closed there the end of 1986.

   
   

5. When Mr. Ellis left employment with Lemonde-Biscayne Inc., sometime prior to the soil samples in question, his position was filled by Mr. Repass, an individual with approximately 1-5 years experience in surveying, who was soon to to take the Florida Surveyors exam. Mr. Repass was hired by Mr. Ellis. When the soil surveys were done, Mr. Repass had been in place for about a year.

   
   

6. The soil sampling in question was required by the County Health Department, Division of Department of Health and Rehabilitative Services, to determine the appropriateness of soil in the area for the installation of septic tanks. Lemonde- Biscayne, Inc. was contacted to conduct these surveys and because business was quite heavy at that time, Mr. Bolton sent up a two man crew from his Miami operation to do the work in question. Respondent knew nothing about this crew, but accepted the representation from Mr. Bolton that they were

   qualified surveyors. In fact, the crew worked for the company for approximately two to three weeks prior to any notification of the Health Department's questions about the soil samples.

   
   

7. The problem concerning the samples was communicated to Mr. Repass by telephone from Mr. Anderson, the health department official who followed up his conclusions with a letter in September, 1986. When Mr. Repass received the information from Mr. Anderson, he caused new soil samples to be taken at the sites utilized the Bolton crew and determined that their samples, though reported to be done correctly, were in fact not done at all. Respondent did not however, examine the sample site himself nor did he discuss the samples with the crew subsequent to its reported taking of the soil samples and before he affixed his signature to the forms.

   
   

8. When Respondent learned of the problem he was in Venice. He immediately went to Stewart and discharged the Bolton crew, returning them to Miami without either seeing or talking to them. It was at this time that Respondent was first advised of Mr. Repass's dissatisfaction with the crew's work in general.

   
   

9. Respondent was familiar with the form he signed. In St. Lucie County, every survey of property which did not call for a central sewage system audit had to have a soil sample survey signed by a registered surveyor or engineer.

   He had signed many of these forms as a land surveyor and this is the only time he can recall having had a problem.

   
   

10. When Mr. Lemonde attempted to talk with Mr. Bolton about his crew after the problem came to light, Bolton was not willing to discuss the matter. Respondent does not know what action Bolton took with regard to the crew when it got back to Miami.

    
    

11. Before the crew went out to take the samples in question, Mr. Repass instructed them as to where to go and what to do to take the appropriate samples. He told them to make sure that they dug the hole to the proper depth and record the soil makeup. The crew told him that they had done soil samples before, but were not familiar with this specific form. They assured Repass that they could handle the job, however, and when they came back, the write up in their field book, though sloppy, appeared to show that they had done the work in question.

    
    

12. Mr. Repass's duties included quality checking their performance when the field notes were returned to the office before any survey report was prepared and released. Since a mathematical calculation is involved, errors generally can be identified without too much difficulty. On soil samples however, there is little that can be done to verify the information brought in by a crew short of going out and redoing the borings Neither Mr. Repass nor the Respondent checked the accuracy of the borings reported by Bolton's crew. Since the crew came highly recommended by Mr. Bolton, himself a long standing,

    well thought of professional registered land surveyor, Respondent felt confident in accepting this crew's work and signed the forms based on the crew's representation.

    
    

13. In his training as a land surveyor, Respondent was not given any training in soils profile or identification. Neither subject is examined during the licensure examination for a surveyor.

14. Most counties in the State of Florida consider soil tests as independent of surveying work and the soil samples are taken by an independent engineer or soils expert. In St. Lucie County, however, the health department requires only that the person doing the soil sample be either an engineer or a registered surveyor. The health department has set no standards for training the people who collect soil data nor are there any standards set for determining color or texture of the samples taken.

    
    

15. In Repass's opinion, the others registered surveyors for whom he has worked in the past, did nothing different than that which the Respondent did in this case. Repass himself has done between 500 and 600 soil samples. There is nothing unusual or complicated about the process and he was satisfied before he sent them out that the crew supplied by Mr. Bolton was physically and mentally capable of accomplishing the job.

    
    

16. There is no question that the samples prepared by the Bolton crew were false. When Mr. Anderson of the health department saw the six applications in question, in a spot check, he had inspectors from his own office go out and do new borings on the site. Of the six forms in question, five showed differences when the county borings were compared with those of the Bolton crew.

    
    

17. St. Lucie County does not publish any guidelines for description of color or texture to be used on the forms involving soil borings. Neither does it require that the person conducting the sample have any special training, regardless of the requirements of Rule 10D-6, Florida Administrative Code. This provision calls for soil tests to be performed by either an engineer with soils training who is registered by the State of Florida, or by other qualified persons with soils training. St. Lucie County requires only that the application be filed either by an engineer or a land surveyor who can appropriately describe the plot containing the site of the borings.

    
    

18. Petitioner's expert, Mr. John Quillen, a registered land surveyor of many years experience, was unwilling to characterize Respondent's performance here as either fraudulent, incompetent, or negligent. He did, however, indicate, as has been found previously, that there was a substantial inconsistency between the borings done by the Bolton crew and signed off on by the Respondent, and those done by the health department crew as a spot check later on. Mr. Quillen further alleges, and Respondent admits that as a registered land surveyor his signature on the report establishes his responsibility for the report and its correctness.

    
    

19. Respondent has taken the position that the practice of surveying does not include soils classification and examination. Surveying training does not include these functions nor does the general practice of land surveying encompass them. Mr. Quillen, on the other hand, indicates that as a land surveyor he can be reasonably expected to do soil samples and has done many in the St. Lucie and Palm Beach Counties area. He is unfamiliar, however, with other counties in the state. It is found, therefore, that while soil sampling and classification is not normally a function of a land surveyor, in St. Lucie County, land surveyors take soil samples and when Respondent, as a registered land surveyor, accepted a commission to perform these samplings as a land surveyor, he incorporated this function into the surveying umbrella which enclosed his professional activities.

    
    

20. Mr. Briggam, a registered land surveyor practicing in Sarasota County and the Venice area in particular, has not done any work in St. Lucie County while a registered surveyor. Therefore, he is not familiar with the local

    requirements. He is, however, aware that surveyors do soil surveys in that location. He would not sign off on work done by others in areas in which he had no expertise, nor would he sign documents prepared on the basis of the work of others which he has not had the opportunity to check. However, given the fact that in the instant case, the provider of the crew in question was Respondent's business partner, who had been in business for an extended period of time, and that the act required was a simple boring and report of observation; and, in light of the fact that in St. Lucie County surveyors do this type of work, he might have signed the applications in issue here. Mr. Briggam agrees that when a surveyor sends out a crew to do a job, and it comes back with results, if the surveyor is reasonably sure the crew could do the work, he has to accept that work unless there is some way to check it in the office. Here, as has already been established, no such opportunity presented itself.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

    
    

22. Respondent is alleged to be guilty of making or filing a report or record which he knew to be false, (472.033(1)(e), Florida Statutes); and being guilty of fraud, deceit, negligence, incompetency or misconduct in the practice of land surveying, (472.033(1)(g), Florida Statutes); in addition to failing to perform a legal obligation placed upon land surveyors, (472.033(1)(h), Florida Statutes). Counsel for Petitioner admits that Respondent has not been shown to be, nor was it ever intended that he be charged with fraud, deceit, or misconduct of an intentional or fraudulent nature in the practice of land surveying. Petitioner's case is founded upon its allegation that by failing to insure the work done by the Bolton crew and by signing the applications to the health department based on work which he failed to verify, Respondent is guilty of negligence and incompetency. Petitioner relies to a great extent on the fact that by signing the applications, Respondent makes himself responsible for the accuracy of the information contained thereon. This raises the question of the definition of the term, "responsibility."

    
    

23. Without question, Respondent would be financially responsible for any damage incurred by a client as the result of erroneous information contained in his report. Whether he is responsible to the degree that his license may be disciplined, in light of these circumstances, is another question. The strict liability which pertains to financial responsibility is not as clearly defined when it comes to assessing the appropriateness of disciplinary action for negligence or incompetence. Respondent argues, and properly so, that he relied upon the representation of his partner, an individual heading a surveying firm in business since 1900, which, itself, possessed a good reputation in the surveying community, and who provided and vouched for a crew indicated to be capable of doing the work in question. It may well have been reasonable for him to rely on the information presented by this crew, well represented as it was, in light of the fact that, short of going out and doing the work himself again, there was no way to verify the accuracy of its representation. Consequently, the evidence that Respondent's actions in this instance constituted either negligence or incompetence is neither clear nor convincing Ferris v. Turlington, 510 So.2d 292, (1987).

    
    

24. Respondent's argument that because soil sampling is not a routine procedure in land surveying, he cannot be disciplined because his actions cannot be considered misconduct in the practice of land surveying, is without merit.

However, it having been previously determined that neither negligence nor incompetence has been established, this argument is moot.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore:

RECOMMENDED that the Administrative Complaint against Daniel E. Lemonde be dismissed.

RECOMMENDED this 21st day of April, 1988, in Tallahassee-, Florida.

ARNOLD H. POLLOCK, 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 21st day of April, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5111

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

By the Petitioner

1 - 3. Accepted and incorporated herein.

4. Accepted in that the information as to water tables and soil samples on the forms was grossly inaccurate and that Respondent did not have actual knowledge of the inaccuracies at the time he signed. Remainder rejected as contra to the weight of the evidence.

5 - 7. Accepted and incorporated herein.

8. Accepted and incorporated herein except for finding that Respondent failed to verify the accuracy of information on the forms through knowledge of the crew.

By the Respondent

1 - 3. Accepted and incorporated herein.

4 - 6. Accepted and incorporated herein.

7 - 9. Accepted and incorporated herein.

10. Accepted and incorporated herein.

11 - 12. Accepted and incorporated herein.

13. Unsupported by evidence of record.

14 - 16. Accepted.

COPIES FURNISHED:

Bill O'Neil, Esquire

Department of Business Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Charles J. Cheves, Esquire

341 Venice Avenue, West Venice, Florida 34285

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

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-005111

Orders for Case No: 87-005111