STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARLAND R. HARDWICK, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1457

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 20, 1982, in St. Augustine, Florida. The parties were afforded leave through November 9, 1952, to submit proposed memoranda which were received and considered by me in preparation of this Recommended Order. 1/

APPEARANCES

For Petitioner: Geoffrey B. Dobson, Esquire

Meredith & Dobson

77 Bridge Street

St. Augustine, Florida 32085-1957

For Respondent: Susan Tully, Esquire

Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

BACKGROUND

By petition for a formal administrative proceeding pursuant to Section 120.57(1) , Florida Statutes, the Petitioner sought review of the grading for Case VI of the Land Surveyors Examination, which was administered on October 29 and 30, 1981. As ground therefor, Petitioner alleged that Case VI, as asked, did not require, in the preparation of a legal description, dimensions for the outside right-of-way, the center line or the inside right-of-way, which dimensions were utilized in the model answer for Respondent to determine the correctness of math data.

At the hearing, it was stipulated that all depositions heretofore taken and filed may be considered as part of the record in this case.

Petitioner offered into evidence depositions of four (4) witnesses, i.e., Lawrence A. Paine, Dan A. Wilcox, Morton McDonald, and Louis Peros, and four (4) exhibits. Respondent offered the deposition of David Gibson, Examination

Consultant to the Department of Professional Regulation. Petitioner testified in his own behalf at the hearing.

ISSUE

At issue herein is whether or not Petitioner correctly responded to Case VI on Part II of the Land Surveyors Examination, and if so, whether he should have received a passing grade.

FINDINGS OF FACT

Based upon my observation of the Petitioner and his demeanor while testifying, depositions and other documentary evidence received, and the entire record compiled herein, the following relevant facts are found:

1. Petitioner, Garland R. Hardwick, was a candidate for the Land Surveyors Examination administered October 29 and 30, 1901. Case VI, a legal description, constituted a portion of the examination given on October 30, 1981. (Testimony of Petitioner)

   
   

2. Case VI required the examinee to prepare a legal description of the portion of a road right-of-way which cut across a lot within a platted subdivision for inclusion in a right-of-way deed. (Petitioner's Exhibit 2 and the deposition of David Gibson, page 8) The examinee was further asked to "calculate any quantities needed." The credit given for Case VI was 20 points.

   
   

3. As drafted, Case VI called for certain calculations to be performed by the examinee. The type of calculations required depended on the description provided, i.e., metes and bounds or strip conveyances. A strip form of conveyance required description and calculation of the center line. (Gibson deposition, pages 11-12) A portion of the credit given on Case VI was for calculations. If a strip form description were used in Case VI, the minimum calculations required for credit were those of the arc length (center line) and the radius. If these minimum calculations were not performed by an examinee having prepared a strip form or center line description, no credit was given to the examinee. (Deposition of Gibson, pages 14-19)

   
   

4. Petitioner's response to Case VI is a strip or center line description. Petitioner did not calculate or describe the distance along the arc of the center line, or the right-of-way as it cut across the lot in question. Petitioner therefore received no credit on Case VI for calculations. (Testimony of Petitioner [TR pp 6-8] and Petitioner's Exhibit No. 2)

   
   

5. David Gibson, an examination consultant who was solely responsible for the drafting and grading of Case VI, gave his expert opinion that the required calculations of examinees preparing a strip, or center line description, were consistent with the standards of the profession. (Gibson deposition, page 16)

   
   

   PETITIONER'S POSITION

   
   

6. During the hearing, Petitioner related that no calculations or descriptions of the distance along the arc of the center line for Case VI were needed, and in support thereof, referred to examples of strip descriptions filed within Report 4, Metes and Bounds Descriptions by Fant, Freeman and Madson, a book referred to on the suggested book list provided to examinees. petitioner cited Cases 33 and 37 within the above-referred text as being examples similar to Case VI on the examination. The sample description given in Case 33 provides

   calculations and distances along the center line of the right-of-way. (Testimony of Petitioner, TR pages 6, 8, 15-20, and Petitioner's Exhibit 3)

   Further, Petitioner points to the fact that in the event of a dispute the boundary line of the adjoining lot would control over the distance of the center line of the right-of-way. Case 33 of the above referred reference book appeared similar to Case VI of the subject examination. (Testimony of Petitioner, TR p.

   16) In that example, center line distances are calculated and "would enable the surveyor to locate this strip . . . help him maintain the identity of this parcel or strip." (Petitioner's testimony TR p. 17) Case number 35 and others referred to during the hearing by Petitioner (save Case 33) were, at best, limited in similarity and would not require a different result. (TR p. 20)

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

9. The authority of the Respondent is derived from Chapters 455 and 472, Florida Statutes; Rule Chapter 21HH-4, Florida Administrative Code.

   
   

10. Pursuant to Board's Rules 21HH-4.02(2) and 21HH-4.03 (2) Cd) , Florida Administrative Code, twenty percent (20 percent) of Part II of the Land Surveyors Examination is preparation of land or a legal description. The portion involving the land or legal description is drafted and graded by either the examination consultant or a testing service.

    
    

11. The person solely responsible for the drafting and grading of Case VI on the October 30, 1981, Land Surveyors Examination was David Gibson, examination consultant to the Respondent Department.

    
    

12. Case VI, as drafted, called for calculations as necessary. Although the question, as drafted, did not ask for specific calculations, i.e., the arc of the center line of the right-of-way, such calculation appeared to be in keeping with trade practice. Consultant Gibson's grading of the Petitioner's exam was consistent with his drafting-of Case VI. Further, calculation and description of the center line appears necessary in order to properly describe the location of the property in question, even assuming arguendo, that in the event of a dispute, the boundary line of the adjoining lot would control over the distance of the center line of the right-of-way.

    
    

13. Petitioner failed to establish, by competent and substantial evidence, that he correctly responded to Case VI on Part II of the Land Surveyors Examination or that math data calculations were unnecessary in view of the inquiry in Case VI to "calculate any quantities needed."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Board of Land Surveyors, enter a Final Order denying Petitioner's request and the relief sought to the effect that he be awarded a passing grade on the Land Surveyors Examination administered to him on October 29 and 30, 1981.

RECOMMENDED this 8th day of February, 1983, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1983.

ENDNOTE

1/ To the extent that the parties' proposed recommendations and conclusions are not incorporated in this Recommended Order, said proposed findings, etc. were deemed either irrelevant, immaterial or not otherwise supported by competent and substantial evidence.

COPIES FURNISHED:

Geoffrey B. Dobson, Esquire Meredith & Dobson

77 Bridge Street

St. Augustine, Florida 32085-1957

Susan Tully, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

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

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001457

Orders for Case No: 82-001457