STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF PROFESSIONAL ) ENGINEERS AND LAND SURVEYORS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2244

)

DANIEL W. CORY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in the above case on February 14, 1978, in Daytona Beach, Florida.

The following appearances were entered: Ford L. Thompson, of the firm Thompson, Wadsworth, Messer, Turner and Rhodes, Tallahassee, Florida, for the Petitioner, Florida State Board of Professional Engineers and Land Surveyors; and John R. Godbee, Jr., of the firm Coble, McKinnon, Rothert, Bohner and Godbee, Daytona Beach, Florida, for the Respondent, Daniel W. Cory.

On or about November 2, 1977, the Florida State Board of Professional Engineers and Land Surveyors ("Board" hereafter) filed an Administrative Complaint against Daniel W. Cory ("Respondent" hereafter). In the Complaint it is alleged that the Respondent, who is registered with the Board as a Land Surveyor, violated the provisions of Section 472.10(3)(a)(3), Florida Statutes, and the rules and regulations of the Board in that he conducted an erroneous survey, and subsequently denied making any error. The Respondent petitioned for a formal hearing, and requested that a Hearing Officer be appointed. In accordance with the provisions of Section 120.57(1)(b)(3), the Board forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled by notice dated January 13, 1978.

The Board called the following witnesses: Hiram Luke, a carpenter foreman employed by Harold Read; Jerald Smith, a carpenter who was employed by Read during 1976; Michael Lynn Tinney, a dozer operator who was contracted to do work for Read during October, 1976; Harold J. Read, Jr., a building contractor who hired the Respondent to conduct a survey during October, 1976; and Elmer M. Emrich, an administrative assistant employed by the Board. The Respondent called the following witnesses: Robert E. Wolfe, Sr., a land surveyor who is employed by the Respondent; William N. Gillespie, an attorney who practices in New Smyrna Beach, Florida, and specializes in real property practice, frequently utilizing the services of surveyors, including the Respondent; Donna Dyett, a resident of Volusia County, Florida, who observed the Respondent's survey team conducting the survey in question; John J. Matejka, Jr., a registered land surveyor who practices in New Smyrna Beach, Florida, and is familiar with the professional reputation of the Respondent; Claude E. Talley, a registered land

surveyor who practices in New Smyrna Beach, Florida, and is familiar with the Respondent's professional reputation; Rick Fennell, a surveyor who is employed by the Respondent; John Palmer, a surveyor who is employed by the Respondent; and the Respondent.

Hearing Officer's exhibits 1 and 2, Petitioner's exhibits 1 through 5, and Respondent's exhibits 1 through 15 were offered into evidence at the hearing, and were received. The parties have submitted posthearing legal memoranda and proposed recommended orders.

The issue in this case is whether the Respondent was guilty of malpractice, malfeasance, or gross negligence in the practice of land surveying in conducting a survey for Harold J. Read, Jr., in the Florida Shores subdivision, Volusia County, Florida, in October, 1976. Testimony offered by witnesses called by the Board and witnesses called by the Respondent was in conflict. The testimony of the witnesses was in such total disagreement, that it is not possible to resolve the conflicts except to conclude that some of the witnesses testified falsely.

In resolving the conflicts in the testimony, due regard has been given to the demeanor of the witnesses at the hearing, and the extent to which the witnesses' testimony was corroborated by other evidence.

FINDINGS OF FACT

1. The Respondent is registered with the Board as a land surveyor. He holds registration number 2027.

   
   

2. During October, 1976, Harold J. Read, Jr., a construction contractor, retained the Respondent to make a survey of lots 9067 and 9068, on block 294, in the Florida Shores subdivision, unit number 10, located in Volusia County, Florida. The lots were owned by Read, and it was his intention to construct a house on the lots for resale. Read needed the survey in order to clear the land, and to properly locate the house on the lots. On October 8, 1976, a survey team employed by the Respondent went to the site to perform the survey. The lots are located on Royal Palm Drive. The southeast corner of the lots is located 120 feet from the corner of Royal Palm Drive and 26th Street. The survey team located the concrete monument or survey marker at the northwest corner of Royal Palm and 26th Street, and set a "tin tab" in the middle of Royal Palm Drive extending directly across the street from the permanent monument. A "tin tab" is a metal disc approximately twice the size of a quarter which is used by surveyors to make appropriate markings in the middle of streets. The tin tab is nailed into the street. The survey team then measured 120 feet along the center of Royal Palm Drive and set a tin tab which was directly across from the southeast corner of the lots. The team then measured 80 feet further along Royal Palm Drive and set a tin tab to designate the northeast corner of the lots. All of the lots in the Florida Shores subdivision are 40 feet by 125 feet, therefore the two lots owned by Read had an 80 foot frontage on Royal Palm Drive. The team measured directly from the tin tabs over to the edge of the Royal Palm Drive right-of-way and located the corners of the lots. Spaces were cleared and iron pipes were placed in the ground to mark the corners. Next to each pipe, a four foot long piece of wood lath was placed approximately eight inches in the ground, and yellow flags were tied to the stakes. These stakes were placed at the corners in order to allow the owner to easily see the locations of the corners. Four foot long stakes were used because the lots had not been cleared and the growth was rather heavy. When the southeast and northeast corners were located in this manner, the survey team performed a similar operation to locate the southwest and northwest corners. The team did not determine these corners by measuring 125 feet from the eastern corners

   because of the thickness of the underbrush. Instead, the team measured down 26th street 125 feet, and set the western corners walking along a cleared electrical wire right-of-way. Iron pipes and wood stakes with yellow flags were placed at each of the western boundaries. The survey team was at the site for approximately one and one half hours. Iron reinforcing rods which appeared to be markings from previous surveys were found at at least two of the corners, and in order to set the iron pipes, the survey team needed to clear underbrush.

   
   

3. On October 13, 1976, Harold Read, several of his employees, and a dozer operator who he had hired to clear the lots appeared at the lots to clear them, and to locate the house. They found stakes somewhat shorter than those placed by the surveyors. One of the Board's witnesses testified that these stakes had yellow flags tied to them, but the rest of the witnesses testified that the flags were orange. At least two, and possibly three of the stakes were located next to iron pipes which appeared to be the corner markers. Read assumed that these stakes marked the corners, and he instructed the dozer operator to clear the property accordingly. After the lots were cleared, Read, with his employees, located the house on the lot so that there would be approximately ten feet between each end of the house and the northern and southern boundaries of the lots. Read then commenced to build the house, and in January, 1977, the house was nearly completed.

   
   

4. In order to complete financing arrangements the lending institution that had been utilized by Read requested that the lots be resurveyed in order to assure that the house was appropriately located. On January 29, 1977, the Respondent went to the lots to perform the resurvey. He found that the lots had been cleared twenty feet too far south, and that the house had been located so that it encroached by ten feet into the lot which directly adjoined Read's lots to the south. He checked and found that the tin tabs placed by his crew were still in the center of Royal Palm Drive designating what would have been the correct boundaries of the lot. He did not find the pipes that would have marked the correct corners, so he reset pipes at the appropriate corner locations. Thereafter the Respondent checked the information with his survey team, and verified that the original survey had been done correctly. He then contacted Read about the discrepancies. Read, the Respondent, and several others visited the site later that day. The Respondent denied, and continues to deny, that the original survey was conducted improperly. Read has consistently maintained that he correctly followed the stakes that were at the site.

   
   

5. No explanation was offered at the hearing, and it does not appear that any of the parties have evidence which would explain how the stakes and pipes came to be moved from the correct locations on October 8, when the survey was conducted, to incorrect locations on October 13, when the lots were cleared, and the house was located. It affirmatively appears from the evidence that the Respondent's crew properly performed the survey and that the Respondent was not responsible for the stakes being moved. Evidence contrary to this finding has been considered and rejected.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to this action, and over the subject matter. Sections 120.57(1) and 120.60, Florida Statutes (1977).

   
   

7. The Board has the burden of establishing that a registrant has violated provisions of the Florida Statutes, and of the Board's rules and regulations in order to take action to suspend or revoke a registrant's registration with the

   Board, or to take any other disciplinary action against a registrant. Everett

   v. Gillespie, 63 So.2d 903 (Fla. 1953).

   
   

8. Section 472.10(3)(a), Florida Statutes (1977), provides:

   
   

   The board may revoke or suspend a certificate of registration of a land surveyor for:

   * * *

   3. Malpractice, malfeasance, gross carelessness, or gross incompetence in the practice of land surveying . . .

   
   

   The Board has failed to establish that the Respondent has been guilty of malpractice, malfeasance, gross carelessness or gross incompetence in this case.

   
   

9. A final order should be entered dismissing the administrative complaint filed by the Board.

RECOMMENDED ORDER

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

RECOMMENDED:

That a final order be entered by the Florida State Board of Professional Engineers and Land Surveyors finding the Respondent, Daniel W. Cory, not guilty of the charges contained in the administrative complaint filed by the Board, and dismissing the complaint.

Recommended this 19th day of April, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

904/488-9675

COPIES FURNISHED:

Ford L. Thompson, Esquire Post Office Box 1876 Tallahassee, Florida 32302

John R. Godbee, Jr., Esquire Post Office Drawer 9670

1025 Volusia Avenue

Daytona Beach, Florida 32020

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF PROFESSIONAL ) ENGINEERS AND LAND SURVEYORS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2244

)

DANIEL W. CORY, )

)

Respondent. )

)

APPENDIX TO RECOMMENDED ORDER RULINGS IN ACCORDANCE WITH

FLORIDA STATUTES SECTION 120.59(2)

The parties have submitted posthearing legal memoranda including Proposed Findings of Fact. Rulings upon Proposed Findings of Fact are set out herein in accordance with Section 120.59(2), Florida Statutes (1977).

The proposed findings of fact set out in paragraph 1 of the Board's Findings of Fact have been substantially adopted in the Findings of Fact set out in the Recommended Order. The proposed finding set out in paragraph 4 of the Board's Proposed Findings of Fact has been substantially adopted in the Findings of Fact set out in the Recommended Order, except that the last sentence of the paragraph is rejected. Proposed Findings of Fact set out in paragraphs 2, 3 and

5 of the Board's Proposed Findings of Fact are hereby rejected.

The Proposed Findings of Fact set out in paragraphs 1, 2, 3, 4, 5, 7, 8,

10, 11, 12, 13, and 14 of the Proposed Findings of Fact submitted by the Respondent have been substantially adopted in the Findings of Fact set out in the Recommended Order and they are hereby adopted. The proposed finding of fact set out in paragraph 6 of the Respondent's Proposed Findings of Fact is adopted; however, the fact that Mr. Read and the dozer operator did not have the actual survey with them when they cleared the lot is without significance. The survey would not have assisted them in that task. The quotation of the testimony of the witness Tinney set out in paragraph 9 of the Respondent's Proposed Findings of Fact is correct; however, the characterizations of the testimony set out in the paragraph are rejected. The findings of fact set out n paragraphs 15, 16, and 17 of the Respondent's Proposed Findings of Fact are hereby adopted except that insofar as it is inferred in these paragraphs that the Respondent had an affirmative burden to produce any evidence, the findings are rejected. It has been in this proceeding the responsibility of the Board to establish that the Respondent committed acts which would justify suspending or revoking his registration.

Entered this 19th day of April, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Ford L. Thompson, Esquire Post Office Box 1876 Tallahassee, Florida 32304

John R. Godbee, Jr., Esquire Post Office Drawer 9670 1025 Volusia Avenue

Daytona Beach, Florida 32020

================================================================= AGENCY FINAL ORDER

=================================================================

IN THE FLORIDA STATE

BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS

FLORIDA STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS,

Petitioner,

vs. CASE NO. 77-2244

DANIEL W. CORY,

Respondent.

/

ORDER

This matter came on for consideration by the Board of Professional Engineers and Land Surveyors (hereinafter referred to as "the Board"), at its meeting in Tallahassee, Florida on May 11, 1978 of the Recommended Order entered in the above-styled case by Stephen Pfeiffer, the Hearing Officer, and each member of the Board present having acknowledged that he read the Recommended Order of the Hearing Officer including the Findings of Fact, the Conclusions of Law and the Recommendation and had considered the Recommended Order, the Board

by unanimous vote of all members agrees with the Findings of Fact, the Conclusions of Law and Recommendation set forth by the Hearing Examiner in his Recommended Order and adopts said Findings of Facts, Conclusions of Law and Recommendation as its own, it is therefore,

ORDERED AND ADJUDGED by the Florida State Board of Professional Engineers and Land Surveyors that the Respondent, DANIEL W. CORY, is not guilty of the charges contained in the Administrative Complaint filed against him by the Board and said Complaint is dismissed.

DONE AND ORDERED by the Board of Professional Engineers and Land Surveyors this 11th day of May, A. D. 1978, in Tallahassee, Florida.

WILLIAM M. BISHOP

President

Florida State Board of Professional Engineers and

Land Surveyors ATTEST:

J. Y. READ Executive Director

COPIES FURNISHED:

STEPHEN PFEIFFER, ESQUIRE

Hearing Officer

JOHN R. GODBEE, JR.

Attorney for Respondent

FORD L. THOMPSON, ESQUIRE

Attorney for Petitioner

Docket for Case No: 77-002244

Orders for Case No: 77-002244