vs. ) CASE NO. 96-0391
Respondent. )
Pursuant to written notice, a formal hearing was held in this case on May 10, 1996, at West Palm Beach, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Miriam S. Wilkinson, Esquire
The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint, and, if so, what action should be taken.
On November 3, 1995, the Department of Business and Professional Regulation, Board of Professional Surveyors and Mappers (Petitioner) filed an administrative complaint against John William Renner (Respondent). Petitioner charged Respondent with violating Subsection 472.033(1)(g), Florida Statutes, by committing negligence in the practice of surveying, through his failure to abide by several minimum technical standards for land surveying: violating Rules
6.004(3), and 21HH-6.006(2), Florida Administrative Code; failing to measure from PCP to PCP; and failing to show the discrepancies between the real property description and the survey drawing. By letter dated December 6, 1995, Respondent requested a formal hearing and reiterated that he had also requested
a formal hearing from Petitioner in January 1993. On January 22, 1996, this matter was referred to the Division of Administrative Hearings.
At the hearing, Petitioner presented the testimony of two witnesses and entered five exhibits into evidence. Respondent chose not to testify but entered two exhibits into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The parties filed proposed findings of fact which have been considered in this recommended order.
At all times material hereto, John William Renner (Respondent) was licensed as a land surveyor in the State of Florida, having been issued license number LS 0004739.
Respondent has been a licensed land surveyor since July 13, 1989.
The minimum technical standards for surveys are set forth in Rule 21HH- 6, Florida Administrative Code, (Rule) of the Board of Professional Surveyors and Mappers (Petitioner). The Rule sets forth minimum standards which are expected and required of all surveyors. No deviation from the required minimum standards are permitted.
A surveyor must first satisfy the minimum technical standards before applying community standards of local custom to a survey.
On or about March 30, 1992, Respondent performed a survey of a lot described as: Lot 13, Block 1, Plat I of Sky Lake, according to the plat recorded in Plat Book 39, Pages 133-134, as recorded in the public records of Palm Beach County, Florida.
Different surveyors, examining Respondent's survey, would have differing opinions regarding his survey. However, no deviation from the required minimum technical standards is permitted.
As part of Petitioner's investigation of Respondent's alleged violations of the Rule, Petitioner requested a copy of the original survey. Respondent had misplaced the original and never complied with Petitioner's request. Petitioner obtained the original survey from the title company.
The survey was certified by Respondent with his signature and seal.
It is undisputed that Respondent's product is a boundary survey. However, he failed to state on the survey the type of survey that the certified drawing represents.
The subdivision in which the Lot is located is platted. The boundary survey plats the Lot.
Since the filing of the administrative complaint against him, Respondent has become aware that his surveys must identify the type of survey that his certified drawings represent.
Respondent made field notes during the preparation of the survey. Field notes are records of observations and measurements made in the field and support the survey.
Also, as part of its investigation, Petitioner requested a copy of Respondent's field notes which contained the measurements that he had made in the field. Respondent could not locate his field notes and was, therefore, unable to produce them; but agreed to produce the field notes when he located them.
Respondent failed to maintain his field notes.
Prior to hearing, through discovery, Respondent informed Petitioner that he had located his field notes but again failed to produce them to Petitioner. Finally, at hearing, approximately two years after Petitioner's investigative request, Respondent produced his field notes.
Respondent's boundary survey provides, among other things, that the "Bearings Are Based On Plat." The plat is not a line; it is a document. Respondent failed to provide the well-established line upon which the bearings are based.
Groups of lots within a platted subdivision are controlled by permanent control points (PCP) and permanent reference markers (PRM). The PRMs define the boundaries of a subdivision. The distance between the PCPs is referred to as a record distance which is shown on the subdivision plat of record. After a surveyor locates the PCPs and the PRMs, the surveyor measures the distance from PCP to PCP and from PRM to PRM. The measured distance in the field is compared with the recorded distance. Rarely are the recorded distance and the measured distance the same. In a discrepancy, with the acceptable margin of error, each lot between the PCPs receives its proportionate share of the measurement.
Respondent's field notes indicate that he measured from PCP to PCP. However, there is no indication on the survey that he made the measurement.
Respondent failed to show on the survey drawing the discrepancy between the recorded distance and the measured distance in the field. The discrepancy is four-hundreths of a foot, which is not significant in and of itself, but is important because the discrepancy adds more that 600 feet to the PCP.
The plat of the subdivision indicates a 180 foot wide canal right of way along the west property line of the Lot. It is undisputed that Respondent failed to show the canal right of way on his survey drawing.
Respondent's survey drawing indicates a fence along the north property line of the Lot. Nevertheless, it is undisputed that Respondent's dimensions are inadequate and insufficient to show the distance from the fence to the property line, i.e., the proximity of the fence to the property line.
Also, Respondent's survey drawing shows three squares drawn along the south side of the residence on the Lot, showing concrete improvements. Even though Respondent's field notes indicate measurements for the squares, his survey drawing fails to identify the squares, as to what they represent, and fails to show their dimensions. As a result, no determination can be made as to whether the concrete improvements may affect property value.
A surveyor is given some latitude as to whether a concrete improvement is fixed and pertinent to the survey, and, therefore, deference is given to the surveyor's judgment. Respondent's survey drawing indicates that the concrete improvements are not fixed and not pertinent to the survey.
Appearing on Respondent's survey drawing are the three abbreviations BM, C. B. S., and CL, with the C and L intersecting. These abbreviations are not generally used by the public.
BM and C. B. S. are not shown in the legend.
Even though the abbreviation CL is in the legend, the C and L are not intersecting. A finding is made that the abbreviation CL, with the C and L intersecting, is not included in the survey's legend.
Respondent's survey indicates the basis for elevations, referencing that "Elevations Based on County BM CL Old Boynton", with the C and L intersecting. BM is the abbreviation for benchmark. The survey did not describe the benchmark, identify the county or provide the published elevation.
Referenced elevations must be based on an established benchmark. If a benchmark is referenced, its description should be sufficient to locate the benchmark and use it. Respondent's benchmark description fails to provide a basis for locating the benchmark or determining its elevation.
In June 1992, after attending a minimum technical standards seminar, Respondent responded to allegations made by a Mr. Dennis Painter regarding the survey. 1/ In his response, Respondent agreed with some of the allegations, and, as a result, Respondent indicated that he made the appropriate revisions to the survey. No evidence was presented at hearing regarding the nature of Mr. Painter's allegations, so there was no opportunity to examine Respondent's responses as they relate to the allegations made.
CONCLUSIONS OF LAW
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.
Disciplinary proceedings are penal in nature. Petitioner must establish the truthfulness of the allegations in its administrative complaint by clear and convincing evidence. Ferris v. Turlington, 570 So.2d 292 (Fla. 1987).
Chapter 21HH-6, Florida Administrative Code, provides minimum technical standards in the practice of land surveying.
Rule 21HH-6.001, Florida Administrative Code, entitled "Purpose and Effect", provides:
The purpose of this rule is to establish minimum technical standards relating to the practice of land surveying which are necessary to achieve no less than minimum accuracy, completeness, and quality so as to assure adequate and defensible real property boundary locations and other pertinent
information which are provided by land surveyors to the public under the authority of Chapter 472, Florida Statutes.
Rule 21HH-6.002, Florida Administrative Code, entitled "Definitions", provides in pertinent part:
(3) Map of Survey, Sketch of Survey, Plat of Survey, Right of Way Survey, or other similar titles: shall mean any drawing of a parcel or tract of real property used for the purpose of depicting the results of a field survey. Each survey drawing shall state the type of survey it depicts as defined in this rule.
Rule 21HH-6.003, Florida Administrative Code, entitled "Minimum Technical Standards for Surveys (Field and Office)", provides in pertinent part:
(2) All measurements made in the field must be in accordance with the United States standard, using either feet or metric, and made with a transit and steel tape, or other devices with an equivalent or higher degree of accuracy. Records of these measurements shall be maintained. With the exception of geodetic surveys, all measurements shall refer to either the horizontal or vertical plane. All computed data or plotted improvements must be supported by accurate field measurements unless clearly stated otherwise.
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(4) A reference to all bearings shown must be clearly stated, i.e., whether to "True North"; "Grid North as established by the NOS"; "Assumed North based on a bearing for a well defined line, such as the center line of a road or right of way, etc."; "a Deed Call for a particular line"; or "the bearing of a particular line shown upon a plat."
... In all cases, the bearings used shall be referenced to some well-established line.
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All recorded public and private rights of way shown on applicable recorded plats adjoining or across the land being surveyed shall be located and shown upon the drawing. Easements shown on applicable record plats or open and notorious evidence of easements or rights of way on or across the land being surveyed shall be located and shown upon the drawing ....
Open and notorious evidence of boundary lines, such as fences, walls, buildings, monuments or otherwise, shall be shown upon the drawing, together with dimensions
sufficient to show their relationship to the boundary line(s).
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(13) Location of fixed improvements pertinent to the survey shall be shown upon the drawing in reference to boundaries, either directly
or by offset lines ... Pertinent improvements are improvements made for the enjoyment of the property being surveyed and shall include docks, boathouses, and similar improvements.
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(15) The surveyor shall make a determination of the correct position of the boundary of the real property and shall set monuments,
as defined herein, unless monuments already exist at such corners. All monuments, found or placed, must be described on the survey drawing ... The corner descriptions shall state the size, material, and cap identifi- cation of the monument as well as whether the monument was found or set. The distance along boundaries between monuments shall not exceed fourteen hundred feet ....
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ABBREVIATIONS:
Abbreviations generally used by the public or in proper names that do not relate to matters of survey are excluded from the legend requirement.
Acceptable abbreviations on the face of maps, plats, or survey drawings are:
N = North S = South E = East W = West
or any combination such as NE, SW, etc.
2 = Degrees
' = Minutes when used in a bearing " = Seconds when used in a bearing ' = Feet when used in a distance " = Inches when used in a distance AC = Acres
+ = More or less (or Plus or Minus)
-
Any other abbreviations relating to survey matters must be clearly shown within a legend or notes appearing on the face of the drawing.
Rule 21HH-6.004, Florida Administrative Code, entitled "Vertical Control and Topographic Surveys", provides in pertinent part:
(3) Minor elevations shown on boundary surveys, such as floor elevations for flood
certificates, does not result in the survey being classified as topographic; however, the datum shall be stated and the elevations shall be based on a closed level loop run.
Rule 21HH-6.006, Florida Administrative Code, entitled "Miscellaneous", provides in pertinent part:
(2) Field notes must be maintained for each survey by either the individual surveyor or the survey firm. Field notes must be dated and must contain sufficient data to substantiate the survey drawing and insure that the field portion of these standards has been met.
Petitioner demonstrated that Respondent practiced below the minimum technical standards for land surveying by failing to state on the survey drawing the type of survey the drawing depicts in violation of Rule 21HH-6.002(3).
Petitioner demonstrated that Respondent failed to produce his field notes upon request. However, such failure to produce is not a violation of the minimum technical standards.
Petitioner demonstrated that Respondent practiced below the minimum technical standards by failing to maintain his field notes in violation of Rule 21HH-6.003(2) and Rule 21HH-6.006(2).
Petitioner demonstrated that Respondent practiced below the minimum technical standards by failing to indicate on the survey drawing the well- established line upon which the bearings are based in violation of Rule 21HH- 6.003(4).
Petitioner demonstrated that Respondent practiced below the minimum technical standards by failing to show on the survey drawing the discrepancies between the real property description (recorded measurement) and the field measurement in violation of Rule 21HH-6.003(6). However, Petitioner failed to cite the rule allegedly violated, citing only the alleged wrongful action and providing that such action was a violation of the minimum technical standards. Petitioner's omission is not fatal. Respondent was sufficiently noticed of the particular action complained of and the violation associated therewith, so as to enable him to adequately and sufficiently determine the particular minimum technical standard that he was accused of violating.
Petitioner demonstrated that Respondent practiced below the minimum technical standards by failing to show a canal right of way along the property line in violation of Rule 21HH-6.003(10).
Petitioner demonstrated that Respondent practiced below the minimum technical standards by failing to show the dimensions of a fence along the property line, indicating the fence's relationship to the boundary line, in violation of Rule 21HH-6.003(11).
Petitioner demonstrated that Respondent practiced below the minimum technical standards by failing to identify in the survey's legend the abbreviations BM, C. B. S., and CL, with the C and L intersecting, in violation of Rule 21HH-6.003(18).
Petitioner failed to demonstrate that Respondent practiced below the minimum technical standards by failing to identify three concrete improvements along the side of the residence, and to show their dimensions and reference to the boundaries in violation of Rule 21HH-6.003(13).
Petitioner failed to demonstrate that Respondent practiced below the minimum technical standards by failing to collect sufficient field data by not measuring from PCP to PCP in violation of Rule 21HH-6.003(15).
Petitioner failed to demonstrate that Respondent practiced below the minimum technical standards by referencing elevations in his survey drawing to a benchmark without describing the benchmark, identifying the county, or providing the published elevation in violation of Rule 21HH-6.003(15). Said Rule does not require Respondent to describe the benchmark, identify the county, or provide the published elevation.
Petitioner failed to demonstrate that Respondent practiced below the minimum technical standards by failing to produce his field notes in violation of Rule 21HH-6.006(2). Said Rule does not require Respondent to produce his field notes.
Section 472.033, Florida Statutes (1991), provides in pertinent part:
The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:
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(g) Upon proof that the licensee is guilty
of negligence in the practice of land surveying.
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(3) 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:
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Revocation or suspension of licensure.
Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the land surveyor on probation for a period of time and subject to such conditions as the board may specify.
Restriction of the authorized scope of practice by the land surveyor.
Petitioner has demonstrated that Respondent is guilty of negligence in the practice of land surveying in violation of Subsection 472.033(1)(g).
Consideration must be given to Respondent's taking of a minimum technical standards seminar in 1992 and to his realization, after taking the seminar, that he had committed several errors in the survey and took measures to correct those errors.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Surveyors and Mappers enter a
DONE AND ENTERED this 7th day of February, 1997, in Tallahassee, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1997.
1/ Respondent's written response was entered into evidence.
Miriam S. Wilkinson, Esquire Department of Business and
John W. Renner, Pro Se
Lynda L. Goodgame, General Counsel Department of Business and
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
