STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF LAND )

SURVEYORS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-512

)

WILLIAM J. LINDH, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing before p. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on June 30, 1983, in Venice, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Charles J. Cheves, Esquire

Cheves & Rapkin

341 West Venice Avenue Venice, Florida 33595

This cause arises from an Administrative Complaint filed January 12, 1953, against the above-named Respondent. In the three counts of the Administrative Complaint it is alleged that the Respondent prepared a survey in Overbrook Gardens in Sarasota County and that the preparation of the survey was done in a manner which violated Section 472.033(1)(g) Florida Statutes, by being fraught with negligence, incompetence and misconduct in the practice of land surveying; that the Respondent violated Section 455.227(1)(b) , Florida Statutes, and Rule 21HH-6, Florida Administrative Code, in failing to meet minimum technical standards for land surveying, and that he concomitantly violated Section 472.033(1)(a) and (h) Florida Statutes.

The Petitioner presented the testimony of Robert Park, Elvin Richard Emerson, and Norman 3 Derix. The Respondent presented testimony of R. Paul Hansgen, a registered land surveyor, Bruce Lindh, and the Respondent himself. The Petitioner offered Exhibits 1 through 4, which were received into evidence, and Respondent's Exhibit 1, which was also received into evidence. At the conclusion of the proceeding the parties requested a transcript of the proceedings and requested time to file proposed findings of fact and conclusions of law. Proposed findings of fact and conclusions of law were timely submitted on or before August 1, 1983.

All proposed findings of fact, conclusions of law, and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by parties, and the arguments made by them, are in accordance with the findings, conclusions, and views stated herein, they have been accepted; and to the extent that such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited. The issue to be resolved concerns whether the Respondent is guilty of the violations of minimum technical standards for land surveying alleged in the Administrative Complaint and, if so, what penalty, if any, is warranted.

FINDINGS OF FACT

1. The Respondent, at all times material to the Administrative Complaint in this proceeding, was a land surveyor licensed by the State of Florida, having been issued license number 1305. The Respondent is also a licensed professional engineer and a licensed architect.

   
   

2. The Petitioner is an agency of the State of Florida charged under Chapter 472, Florida Statutes, and appurtenant rules with the licensure and regulation of licensure status of land surveyors in Florida and the regulation and enforcement of their practice methods and standards.

   
   

3. The Board of Land Surveyors published "Minimum Standards for Land Surveyors (Rule 21HH-6) effective September 1, 1951. The Respondent was unaware of the promulgation of those minimum standards. The Respondent had not attended meetings of the "Manasota" Chapter of the Florida Society of Professional Land Surveyors at which those standards were discussed and a checklist for the standards was distributed.

   
   

4. On August 24, 1982, the Respondent prepared a land survey of a part of Lot 306, Overbrook Gardens, in Sarasota County. The survey was submitted to the Sarasota County Building Department in connection with an application for a building permit pertaining to that real property, filed on August 26, 1982. The offenses charged are alleged violations of the minimum standards with respect to that survey. The Respondent's client had delivered to him a survey prepared by Lemonde Surveying, Inc., of Port Charlotte, Florida, which was prepared on February 28, 1980. That survey contained a metes and bounds land description. The client engaged the Respondent to survey the same parcel of land with that description and provide a survey drawing to be used in conjunction with an application for the subject building permit.

   
   

5. The survey gas not certified by the Respondent in

   accordance with minimum standards. The Respondent admitted this and it was undisputed that the signature and seal of fixed on the survey complied with the legal requirements enforced before the adoption of the abovementoned minimum standards, of which the Respondent was unaware.

   
   

6. The Respondent admitted to failure to refer to all sources of information upon which the survey was predicated. The Respondent used a legal description from a previous survey provided him by Darrell Newell, the contractor who was agent for the owner of the property. The survey the Respondent submitted to the building department only showed the name of the

   owner. The older survey submitted by the Respondent's client was his only source of information in this regard.

   
   

7. The parties stipulated that the allegation regarding failure to show measured distances to the nearest intersection was incorrect and that indeed the Respondent had shown the distance to the nearest intersection.

   
   

8. The Respondent failed to show the location of a telephone company underground terminal pedestal and an abandoned wire fence of unstated dimensions which is outside the surveyed property near the north and east boundaries. The fence does not encroach on the surveyed property at all. The telephone terminal pedestal is approximately one foot or less in height, located just inside the northerly boundary of the property, approximately midway between the two northerly corners. The telephone terminal was not visible at the time of the survey due to high grass, weeds, and undergrowth covering the property when the fieldwork was conducted by the Respondent's survey party chief. The triangular parcel of property involved was located with reference to an established, identifiable real property corner. All three corners were monumented prior to the survey by the Respondent, so that the location of boundaries near the abandoned, partial, non-encroaching fence could be established with reasonable certainty.

   
   

9. On September 15, 1932, personnel of the county building department charged with the responsibility of issuing the building permit for the property requested advice with regard to the efficacy of Respondent's survey from Mr. Emerson, the County Surveyor, who testified for the Petitioner. Mr. Emerson spoke with the Respondent by phone and mailed him copies of the "minimum standards" and the "Surveyor's Checklist" of the Manasota Chapter of the Florida Society of Professional Land Surveyors, which relates to those minimum standards in the rule cited below. The Respondent then promptly and voluntarily prepared a new survey which fully complied with those minimum standards which he had at that point first become aware of, and the building permit was duly issued to the Respondent's client. The Respondent's client's interests were not shown to be prejudiced and the complaint to the Board of Land Surveyors did not emanate from the Respondent's client, but rather from Mr. Emerson of-the county building department, who did not bother to consult the Respondent or obtain his explanation prior to lodging the complaint with the Board.

   
   

10. The survey originally submitted to the Sarasota Count Building Department would have been adequate support for the issuance of the building permit before adoption of the minimum standards. The survey was shown to be totally adequate in terms of its substance and reflection of technical surveying competence, as opposed to the particular format prescribed by the minimum standards. This is the first disciplinary action ever taken against the. Respondent as a land surveyor licensee, and the Respondent's practice of his profession has always been characterized by a high degree of technical competence and professional integrity.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.37(1), Florida Statutes (1981).

    
    

12. The Respondent has been charged with violations of Section 472.033(1)(a) , (g) , and (h) , Florida Statutes (1979), which provide pertinently as follows:

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

       1. Violation of any provision of s. 472.031 or s. 455.227(1);

          1. Upon proof that the licensee is guilty of fraud or deceit, or of negli- gence, incompetency, or misconduct, Dip the practice of land surveying;

          2. Violation of chapter 453; . . .

          
          

13. The disciplinary actions provided for in subsection (3) include revocation or suspension of, license, imposition of a maximum $1,000 fine, a reprimand, or probation.

    
    

14. The Respondent is charged also with violation of Section 455.227(1)(b)

    , Florida Statutes (1981) , which provides:

    
    

    1. The board shall have the power to revoke, suspend, or deny the renewal of the license, or reprimand, censure, or otherwise discipline a licensee, if the board finds that:

       (b) The licensee has intentionally violated any rule adopted by the board or the department.

       
       

       The Respondent, for purposes of Section 472.033(1)(b) , cited above, has not violated any of the provisions of Section 472.031 since it is undisputed that he is a duly licensed and registered land surveyor and has never falsely represented himself as such in any manner.

       
       

15. The evidence adduced does not establish that the Respondent has violated any provision of Section 455.227(1) with which he has been charged. Subsection (b) of that section relates to intentional failure to comply with the Board's pertinent rules. No violation of this subsection has been established by the Petitioner inasmuch as there is no evidence whatever to indicate that any of the acts or omissions with which the Respondent Is charged occurred in a manner clothed with any element of intent. The Respondent here clearly was unaware that any act he committed with regard to surveying the subject property and preparing the survey document was either inaccurate from a technical standpoint or not in compliance with the minimum standards in the subject rules cited hereinbelow. Thus, the Petitioner has failed to prove any violation of Section 455.227 (1)(b) , nor any violation of Section 472.033(1)(a) nor (g) with the exception of the element of negligence contained In that last paragraph. Concomitantly, no violation of paragraph (h) has been shown since that merely concerns derivative liability for a violation of Chapter 455, which has not been proven.

    
    

16. The minimum surveying standards involved in this proceeding are contained in Rule 21HH-6.03. Paragraph (1) of that subsection requires that the survey shall be certified by the surveyor in responsible charge to meet these minimum technical standards. Paragraph (6) of that subsection requires that "reference must be made to the sources of information used in making that survey, such as: the recorded deed description or other conveyance, a recorded or unrecorded plat, or other claim of right." Paragraph (8) of that rule

    requires that the measured distance to the nearest intersection be shown in all areas where recorded lots and blocks are established.

    
    

17. The element of Count I regarding the alleged failure to show measured distances to nearest intersections has not been proven, and indeed the Petitioner stipulated that the Respondent had not violated the above statutory authority nor the minimum standard in subsection (8) of the rule in that regard. There is no question, however, and the Respondent admits that he failed to certify the survey as meeting the minimum technical standards contained in Rule 21HH-6.03, Florida Administrative Code, and thus has violated paragraph (1) of that subsection. So, too, the survey did not make reference on its face to the sources of the information relied upon by the Respondent In performing the survey, merely referring to the name of the owner of the parcel, a technical violation of paragraph (6) of the rule.

    
    

18. This failure to certify the survey as meeting the minimum technical standards of the rule involved herein did not involve any intentional misconduct, but merely was a technical violation attributable to a degree of negligence on the part of the Respondent, for purposes of Section 472.033(1)(g) Thus, with regard to the failure to properly certify the survey (although it was certified properly in relation to surveyor standards as they existed prior to September 1, 1981) , as well as the failure to fully indicate sources of information used in making the survey, the Respondent is (in addition to being in violation of those two rule paragraphs) technically in violation of paragraph

    (g) to the extent that he has been negligent in falling to make himself familiar with and comply with the new minimum technical standards when he should have known of their promulgation and applicability.

    
    

19. The telephone company underground terminal pedestal and the abandoned partial wire fence which lies wholly outside the boundaries of the subject property are not "fixed improvements pertinent to the survey" as contemplated by Rule 21HH-6.03(15). That term is not defined in the minimum standards contained in the rules, but, by its accepted legal definition, it is defined as a permanent, valuable addition to real estate, costing labor or capital', and intended to enhance beauty or utility, or to adapt it to new or further purposes. Although it enhances utility of property to have telephone service, it was not shown that the telephone pedestal is a permanent, valuable addition to that particular real estate, especially since it may not be permanent, is readily detachable and was not shown to be owned by the subject owner and thus an improvement attached, appurtenant to or "running with" the realty in terms of unity of title. The same is clearly true of the partial fence which was established not to be even located on the subject property in any respect, such hat it could not by any definition of the term "improvement" be attributable to the particular real estate involved in this proceeding. See, 17 Fla.Jur. "Improvements" Section 2; Black's Law Dictionary, Fifth Edition, pages 573, 682. Even if the telephone terminal was shown to be a fixed improvement, it was invisible due to high grass and undergrowth and it was not demonstrated by competent, substantial evidence that the Respondent failed to meet any applicable standard of care or was negligent or incompetent in this regard by not searching for a concealed, unknown object which he had no reason to foresee existed on the site.

    
    

20. In summary, the greater weight of the evidence establishes that the Respondent violated Rule 21HH-6.03(1) and (6) by failing to certify that the survey met minimum technical standards and by failing to Indicate on the survey the complete sources of information upon which the survey was based. Thus, by his failure to comply with the minimum technical standards contained in the

rules cited herein to that extent, Section 472.033(1)(g) was violated as to the negligence standard only. Negligence, by such failure, has been shown since, as a registered land surveyor in Florida, although he clearly did not know of the promulgation of the new minimum standards, he should have known of them and was under a duty to inquire about them, especially in view of the fact that other surveyors in his immediate geographical area were aware of these minimum standards. They had been promulgated approximately 11 months prior to his engaging in the survey work involved herein. In view of the fact that he has been established to be merely negligent as to the minor technical violation of these two minimum standards, has never before been involved in any disciplinary proceeding of this nature, and in view of the total absence of proof regarding any incompetency for purposes of paragraph (g) nor any intentional misconduct, a minimal penalty is warranted.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED:

That the Respondent, William J. Lindh, be accorded the penalty of a private, written reprimand for violation of Rule 21HH-6.03(1) and (6),,Florida Administrative Code, and Section 472.033(1)(g) , Florida Statutes (1951) , and that the Administrative Complaint, in all other respects, be dismissed.

DONE ADD ENTERED this 31st day of October, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 31st day of October, 1983.

COPIES FURNISHED:

Theodore R. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Charles J Cheves, Esquire Cheves & Rapkin

341 West Venice Avenue Venice, Florida 33595

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

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF LAND SURVEYORS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

CASE NO.: 83-512

vs. LICENSE NO: 1308

WILLIAM J. LINDH,

Respondent.

/

FINAL ORDER

This cause came before the Board of Land Surveyors on December 15, 1983, in Tallahassee, Florida for consideration of a recommended order entered October 3, 1983 by hearing officer P. Michael Ruff. Pursuant to its consideration of the recommended order, the Board hereby finds and concludes as follows:

1. The findings of fact and conclusions of law" contained within the recommended order are adopted in toto;

   
   

2. The penalty recommended by the hearing officer is modified pursuant to an agreement reached between the parties and adopted by the Board;

   
   

3. The stipulated penalty is as follows: Respondent be and is hereby REPRIMANDED; Respondent shall submit to the Board for its review, during a one year period from rendition of this order, five (5) surveys accompanied by field notes at three (3) month intervals. Plats shall be submitted to the Board upon its request. The one year period shall begin on rendition of this order. DONE and ORDERED this 16th day of December, 1983.

BOARD OF LAND SURVEYORS

Barney Herrick, Chairman

cc: Mr. Joseph W. Lawrence, II, Esquire Charles J. Cheves, Esquire

Michael Ruff, Esquire

Docket for Case No: 83-000512

Orders for Case No: 83-000512