STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-7251

)

LARS DOHM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on March 11, 1992, in Clearwater, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: William S. Cummins, Esquire

Senior Attorney

Department of Professional Regulation

Northwood Centre, Suite 6A 1940 N. Monroe Street Tallahassee, FL 32399-0792

For Respondent: Lars Dohm (pro se)

Apartment #611

5790 34th St.

St. Petersburg, FL 33711 STATEMENT OF THE ISSUES

Whether Respondent is guilty of negligence in the practice of land surveying by the preparation of an inaccurate construction layout survey (stakeout survey), in violation of Section 472.033(1)(g), Florida Statutes.

PRELIMINARY STATEMENT

On December 10, 1990, Petitioner filed a two count Administrative Complaint, charging Respondent with violating section 472.033, Florida Statutes. Respondent denied the allegations, and demanded a formal hearing on December 27, 1990. This matter was referred to the Division of Administrative Hearings on November 7, 1991, and was set for hearing.

At the hearing, the Department voluntarily dismissed Count I of the Complaint, and proceeded on Count II. The testimony of seven witnesses and ten exhibits were offered in evidence by Petitioner. Respondent testified in his

own behalf, and offered no exhibits. The transcript of the proceedings was filed with the Clerk of the Division on April 8, 1992. The Petitioner filed proposed findings of fact and conclusions of law on April 15, 1992. Respondent filed a letter containing six points which are in the nature of argument, and cannot be properly classified as findings of fact, however; each of the proposals have been given careful consideration, and my specific rulings are contained the Appendix attached hereto.

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

FINDINGS OF FACT

1. Petitioner is the state agency charged, in conjunction with the Land Surveying Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapter 472, 455 and 120, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. At all times material to the Administrative Complaint, Respondent, Lars Dohm, was licensed as a land surveyor in the State of Florida, having been issued license number LS0002358.

   
   

3. Nona Chubboy, in January 1989, was the owner of a lot described as Lot 25, Block J, Tierra Verde, Unit 1, Fourth Replat, Pinellas County, Florida, also known as 727 Columbus Drive East, Tierra Verde, Florida. Ms. Chubboy intended to build a dwelling on the lot, and secured building plans for the dwelling. She was to be her own contractor.

   
   

4. In early 1988, she brought the building plans to the Respondent, and asked him to stake out only the lot at that time. Respondent copied the dimensions of the lot and dwelling from the building plans, and returned them to her.

   
   

5. In early 1989, Respondent was retained to do a stakeout survey of the house and lot. Respondent requested that a site plan be prepared. Mrs. Chubboy secured it from the house designed, and delivered it to the Respondent.

6 The site plan shows a set back of 20 feet to a series of dotted lines, then a total of the length of the building from front to back of 63 feet, and footage of 37 feet to the rear of the property, which totals the exact distance of the length of the lot, 120 feet.

1. With the site plan and the dimensions of the foundation of the building in his possession, the Respondent proceeded to stake out the foundation of the dwelling on or about January 10, 1989, and prepared a stakeout survey, thereafter.

   
   

2. Construction began almost immediately on the project upon the completion of Respondent's stakeout. The masonry work was completed, and the framing of the home began.

   
   

3. On or after January 23, 1989, Mrs. Chubboy was concerned the dwelling was too close to the street, and she measured the distance between the foundation and the street. She found it to be set back 20 feet and not 24 feet as intended.

4. As prescribed by Pinellas County, the front set back in the zoning category for 727 Columbus Drive East was 20 feet. Such restriction would preclude the construction of a four foot in depth balcony supported by vertical columns as planned by Mrs. Chubboy in the setback area.

   
   

5. Pinellas County did permit her to put in three foot deep balconies but without vertical columns. Mrs. Chubboy was required to redesign the front portions of the second floor of her home by adding beams for balcony supports, because vertical columns could not be used for support. These changes added to the cost of construction.

   
   

6. The balconies constructed were not as functional as originally designed and resulted in their restrictive use.

   
   

7. On or after January 23, 1989, Respondent provided Mrs. Chubboy with a signed, sealed and certified stakeout survey dated January 23, 1989, showing that the foundation was staked 20 feet from the front of the property, and further indicated that the building stakeout was 59 feet in depth. However, this is at variance with the site plan showed a total building length of 63 feet.

   
   

8. When Respondent was confronted with the discrepancy between the actual stakeout and the site plan, he indicated that Mrs. Chubboy should have checked his work, and he was not going to do anything about the discrepancy.

   
   

9. The stakeout survey contained the dimensions of the foundation layout, as contained in the building plans (59 feet), which were not contained in the site plan (63 feet).

   
   

10. The as-built survey showed where the building was actually constructed, and the foundation was constructed exactly where Respondent staked the foundation.

    
    

11. The site plan was inconsistent with the stakeout survey. The site plan clearly shows that the stakes should have been placed 20 feet from the front of the lot to a projection on the building, and the building should have a

    63 foot depth from that point. The back of the lot was shown as 37 feet, which totals the length of the lot or 120 feet.

    
    

12. The total dimensions of the building could not have been laid out from the site plan, as there is insufficient information on the site plan to give proper dimensions for the building.

    
    

13. The dimensions of the building staked out were in accord with the dimensions on the building plan, as evidenced by the stakeout survey.

    
    

14. The site plan does conflict with the building plan, as the site plan shows the layout of the building from front to back totals 63 feet. However, it also includes a projection which was intended to represent the second floor balconies in dotted lines. The stakeout survey indicates that the building length was 59 feet. In any event, the back of the building in the site plan is

    83 feet from the front of the lot, but as it was staked, it was 79 feet.

    
    

15. A skillful surveyor exercising ordinary prudence should have ascertained from the site plan and dimensions on the building plans that there was a 20 foot setback to a vague object. If you then examine the 63 feet shown on the site plan, and sketch out the 59 feet shown on the building plan, there

    is a four foot discrepancy between the 20 foot setback and where the building is supposed to start.

    
    

16. The site plan was vague, and a skilled surveyor would have contacted his client for more specific information, and under such circumstances, should not have proceeded with the job until he had more specific information.

    
    

17. A contractor or property owner has a right to rely on the professional ability of a surveyor to stake out the building site in accordance with the site plan or building plan. It is not the client's responsibility to check on the accuracy of the work of a professional.

    
    

18. The purpose of a building's stakes is to mark the corners of the building in such a manner that construction can proceed from the stakes. The stakes were not to be moved.

    
    

19. An "envelope-type" stakeout is a stakeout where the builder is free to move the building around. It is used where expert builders set their own offsets. It is not the type of stakeout required here. Such stakeouts were not for use by a person of Mrs. Chubboy's experience, nor is it indicated that Respondent was asked to do anything but stake specific corners. Respondent's assertion that the offset stakes were set so that the building could be moved is not credible.

    
    

20. The "as-built" survey indicated that the building was placed directly where the stakes were placed by Respondent.

    
    

21. Respondent further indicated that he was aware of the discrepancy of four feet between the building plan and the site plan, and chose to proceed with staking the house with a 20 feet set back and 59 feet in depth which added four feet to the back yard.

    
    

22. This error by Respondent constitutes negligence.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

24. Section 472.033(3), Florida Statutes provides:

    When the Board finds any land surveyor guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

    
    

    1. Denial of an application for licensure.

    2. Revocation or suspension of a license.

    3. Imposition of an administrative fine not to exceed

       $1,000 for each count or separate offense.

    4. Issuance of a reprimand.

    5. Placement of the land surveyor on probation for a period of time and subject to such conditions as the Board may specify.

    6. Restriction of the authorized scope of practice by the land surveyor.

25. Section 472.033(1)(g), Florida Statutes provides:

    
    

    (1) The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:

    . . .

    (g) Upon proof that the licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of land surveying:

    . . .

    
    

26. Rule 21HH-6.005(1), Florida Administrative Code provides:

    
    

    Construction Layout, Record or As-built, and Quantity Surveys.

    (1) Construction Layout Survey: when requested by either the owner or the contractor, the surveyor may provide construction staking for use by the contractor. These stakes must be based on controls established using the survey standards as defined in Sections 6.003 and 6.004 of this rule. The stakes provided should be adequate in number, position, and elevation so that the

    physical item can be constructed from the plans as designed.

    
    

27. Petitioner must prove the material allegations against the Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla 1987).

    
    

28. Petitioner has proven by clear and convincing evidence Respondent is guilty of negligence in the practice of land surveying in violation of Section 472.033(1)(g), Florida Statutes, by violating Rule 21HH-6.005(1), Florida Administrative Code.

    
    

29. Negligence has been defined as meaning a failure to comply with the minimum standards of care for that particular profession under the circumstances. Purvis v. Department of Professional Regulation, 461 So.2d 134,

    136 (Fla 1st DCA 1984).

    
    

30. A surveyor has a duty to exercise a proper degree of skill and care in the performance of his work. Respondent failed to use that degree of care and diligence of a prudent land surveyor in that:

    
    

    1. Respondent failed to take into account in performing his stake out project a patent inconsistency between the length of the building site in the site plan and the length of the building site in the building plans.

    2. The building plans were accessible to Respondent, and he was aware of the dimensions of the building where he staked it out. He overlooked the fact that the 59 feet on the building plans was the length of the foundation which did not include the four foot balconies, which were shown on the building plan.

    3. Respondent admits the site plan was vague. If Respondent was uncertain about the location of the building, or did not know what the dotted lines were on the site plan, he should have sought clarification

    after recognizing the inconsistencies between the site plan and building plans. Respondent chose to proceed with the project without seeking clarification.

    Unfortunately his decision resulted in a financial loss to Mrs. Chubboy.

    
    

31. Mrs. Chubboy is not required to check the work of the Respondent, who is a licensed surveyor. She should have been able to rely on the work performed by Respondent. Respondent is guilty of negligence by proceeding to stake out this property on the basis of a site plan which he considered vague. Rule 21

    HH-6.005(1), Florida Administrative Code.

    
    

32. Mrs. Chubboy was unable to construct the home she had planned to construct and as a result of Respondent's stakeout was required to spend extra money in redesigning a portion of her home and the front of her home in a manner that was not completely satisfactory to her liking.

RECOMMENDATION

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

1. That Respondent pay an administrative fine of $1,000.

   
   

2. That Respondent be placed on probation for one year subject to such reasonable conditions as the Board may specify.

DONE AND ENTERED this 21st day of May, 1992, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1992.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact.

Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11(in

part), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 30, 31, 32, 33.

Rejected as not supported by clear and convincing evidence: paragrahs 11(in part: cost of change orders in the design of the home), 12, 13, 34.

Rejected as argument: paragraph 28, 29 Respondent's proposed findings of fact.

Accepted in substance: paragraphs 1, 2, 3(in part), 5.

Rejected: paragraph 3(in part), 4, 6.

COPIES FURNISHED:

William S. Cummins, Esquire Senior Attorney

Department of Professional Regulation

1940 N. Monroe Street Tallahassee, FL 32399-0792

Angel Gonzalez Executive Director

Board of Professional of Land Surveyors

1940 N. Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esquire General Counsel

1940 N. Monroe Street Tallahassee, FL 32399-0792

Mr. Lars Dohm Apartment #611

5790 34th St.

St. Petersburg, FL 33711

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-007251

Orders for Case No: 91-007251