STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF ) PROFESSIONAL LAND SURVEYORS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2158

)

KENNETH O. HART, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished to the parties on June 8 1987, a hearing was held in this case before Arnold H. Pollock a Hearing Officer with the Division of Administrative Hearings in West Palm Beach, Florida on July 13, 1987. The issue for consideration was whether Respondent's license as a professional land surveyor in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.

APPEARANCES

Petitioner: David R. Terry, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Respondent: Kenneth O. Hart, pro se

3198 Riddle Road

West Palm Beach, Florida 33406 BACKGROUND INFORMATION

On May 4, 1987, the Petitioner filed an Administrative Complaint herein alleging various violations of Section 472.033(1) and 455.227(1), Florida Statutes and Rules 21HH-2.01 and 6.03, F.A.C. by Respondent. On or about May 11, 1987, Respondent filed an Election of Rights form in which he disputed the allegations of fact and requested a formal hearing. On May 14, 1987, the file was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer and the undersigned thereafter set the case for hearing as previously stated.

At the hearing, Petitioner presented the testimony of George M. Cole, Jr., a professional land surveyor and expert in the field and introduced Petitioner's Exhibits 1 through 7. Respondent testified in his own behalf but introduced no exhibits. The Hearing Officer took Official Recognition of Rules 21HH-2.001, 21HH-6.003 and 21HH-6.004, F.A.C.

Subsequent to the hearing, the Petitioner filed proposed Findings of Fact which have been treated in the Appendix to this Recommended Order. Respondent filed a letter on August 8,1987, which had 8 exhibits attached to it. The alleged facts contained therein are considered argument rather that proposed findings. The exhibits were reviewed but are not considered persuasive of Respondent's position in the disputed issues herein.

FINDINGS OF FACT

1. At all times pertinent to the matters contained herein, Respondent was licensed as a professional land surveyor in Florida and held license No. LS 0002934.

   
   

2. On October 9, 1984, the Petitioner, Board of Professional Land Surveyors, after an informal hearing at which Respondent was present, entered a Final Order finding that he had, in several instances in the practice of professional land surveying, failed to perform in accordance with the minimum technical standards for land surveying and ordered his license to be suspended for 6 months; that he pay a $500.00 fine within 30 days of the Order; and that he submit a series of surveys and field notes for the review of the Board over a period of time subsequent to the reinstatement of his license.

   
   

3. Respondent contends he agreed to an informal hearing because of recommendations from a representative of the Department of Professional Regulation's, (DPR), local investigative office. However, he was present at the hearing, was afforded an opportunity to present matters in his behalf, and through counsel, filed an appeal to the 4th District Court of Appeals of the Final Order in question which appeal, he subsequently dismissed.

   
   

4. Respondent failed to pay the $500.00 fine on time as required. He contends this was because he had appealed the Final Order and was only one month late. Respondent also failed to file the required sets of surveys after the reinstatement of his license. The first was 6 months late and he cannot give a reason for that other than he was in mild shock as he felt he was a victim of "judicial error." His attorney was appealing the Final Order and he didn't pay attention to the dates. The 4th set of surveys was due in February, 1987 and has not been submitted as of this date. He contends it was not his intention to drag his feet in these submissions. After receiving the reviewer's criticisms of his earlier submissions, he felt they were not in keeping with the minimum standards and he requested clarification. He claims this is the reason for the delay but this excuse is not persuasive. His comment that he failed to pay attention to the dates for compliance with the requirements of the Final Order seems to be somewhat indicative of his attitude toward the practice of land surveying as will be seen from the evidence as discussed below.

   
   

5. Consistent with the Board's Order, however, Respondent submitted several surveys which were considered to be of poor quality. The first set was returned with numerous negative comments and the third set was returned for further preparation and correction to prevent "further disciplinary action."

   The second set was considered to be "in substantial compliance with the terms of the [Board's] Final Order."

   
   

6. Specifically identified for comment were surveys done by the Respondent for Mark and Betty Sivik, Carolyn Riddle, Eugenio Gonzalez, Teresa and Dane Curry, and Silvia Garcia. As to the individual surveys, the following discrepancies were noted:

   1. Sivik

      1. field notes showed no measurements made by Respondent.

      2. field notes showed no angles turned by Respondent.

      3. field notes showed no relationship to fractional corners.

   2. Riddle

      1. field notes show no E-W measurement by Respondent.

      2. field notes show no angles turned by Respondent.

      3. no plat was submitted with the survey.

   3. Gonzalez

      1. field notes do not show complete measurements by Respondent.

      2. field notes do not show angles turned by Respondent.

      3. field notes do not show relationship to fractional corners.

      4. field notes show a fence on three sides but the survey does not.

   4. Curry

      1. field notes do not show angles turned by Respondent.

      2. there is a .9 foot discrepancy as to one line between field notes and the survey with

         no explanation.

      3. as a result of this it cannot be determined if the survey is accurate.

   5. Garcia

      1. measurements to corners shown in field notes are not shown on survey.

      2. Respondent did not submit a plat without which it cannot be determined if the survey is complete or accurate.

         
         

         (Without the appropriate field notes, there is no way to tell if the survey is accurate, complete, or in accord with the legal description of the property.)

         
         

7. In respect to all of the above surveys, none states on its face the type of survey it is. Respondent contends, in this regard, that his use of the letters "P.L.S.", (Professional Land Surveyor) after his signature indicates all are land surveys. This is not sufficient identification since professional land surveyors do various different types of surveys including land surveys, topographical surveys, reestablishment surveys, and the like.

   
   

8. Respondent takes exception to the Board reviewer's comments about and approach to his surveys. As to the issue of angles, he contends that the minimum standards applied by the Board require only that the minimum angles shall be listed and do not require that all angles be turned in the field. He contends that the angles in question were a matter of record in his office. Mr. Cole, the Boards expert, agrees, stating it is not necessary to turn every angle but enough should be turned to insure an accurate description of the property and to verify the actual angles. There are other ways of verifying angles than turning them, but in Respondent's field notes, there was insufficient evidence to show any type of verification of the angles done by others previously.

9. As to the discrepancies between field measurements and the legal descriptions in some cases, Respondent nonetheless contends they are all within standards. Respondent's approach here is somewhat cavalier. Any discrepancies which exist must be shown. The purpose of a survey is to show the current status of the property and it is improper and ineffective to rely solely on the previous record. To list discrepancies does not clutter up the survey nor is it likely to confuse. A failure to show them could well create major problems for a future user of the survey. The .9 foot discrepancy, described by the Respondent as well within the 1:5,000 error standard, is incorrectly described. It is more like an error of 1:200 and is, therefore, not insignificant. It should have been commented on.

   
   

10. The survey done for the Currys can readily be classified as a topographical survey as it describes elevation in at least two places. Therefore, it should have been identified as a topographical survey on the face of it, but this is a minor discrepancy.

    
    

11. The fence running across the back of the Gonzalez property should have been identified as such by the use of appropriate x's on the survey. It was not.

    
    

12. Respondent has been in the private practice of surveying since he passed the state examination in February, 1976. He feels that the Board's case is based on the use of a hypothetical survey to establish standards against which his work was compared. The minimum standards set out in the statute are what, he feels, should control as they speak for themselves.

    
    

13. He has always tried, throughout his years in practice, to protect his clients, and to his knowledge, his work has never cause anyone to lose money.

    He defines precision as the way that a line or angle is measured and accuracy as the manner in which the finished drawing portrays that there are or are not problems in the subject of the survey.

    
    

14. With regard to the attack on his field notes, Respondent contends that the minimum standards merely call for field notes. Their sufficiency is determined by the standards of the practice in the community. He believes his notes contain measurements, calculations and ancillary information sufficient to show the required identifying information. The laws that govern surveyors' performance require many factors to be considered such as encroachment, senior rights, acquiescence and adverse possession, and the Respondent urges that in the interest of simplicity for the benefit of the users of the survey, it is necessary to reduce the quantity of evidence on the survey to the minimum necessary to allow it to be used effectively, not for the convenience of the state examining board. If there are no problems, then there is nothing else to show and his backup office records are adequate. Though Respondent feels the Board's criticisms of his notes are irrelevant, the better weight of the evidence is that they are not.

    
    

15. Though Respondent contends his work in all cases exceeds the requirement for error, (1:5,000; 1:7,500; and 1:10,000 as appropriate), the error in the Curry survey shows his possible lack of understanding of the rules. He considers himself to be a mixture of the textbook and practical surveyor applying his extensive practical field experience to the textbook requirements. The evidence indicates, however, he does not always do so with the required degree of accuracy and skill.

16. Respondent agrees with the 20 minimum standards set out in Rule 21HH-

    6.003. They relate to all surveys and, he believes, should be followed. They constitute the community standard and a failure to follow them would be a failure to follow the community standards. His quarrel is not with the rule but with the agency's interpretation and alleged expansion of its own rule.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

18. In the Administrative Complaint, Petitioner has charged Respondent with failing to comply with the terms of a Final Order of the Board of Professional Land Surveyors issued in a prior disciplinary action against him in violation of Section 472.033(1)(h); Florida Statutes, which authorizes the Board to discipline a license upon a showing of a:

    
    

    (h)...failing to perform any statutory or legal obligation placed on a land surveyor or, violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing...

    
    

19. Respondent admits he failed timely to pay the fine assessed by the Board and that he failed timely to file the required sets of surveys due subsequent to reinstatement of his license. His reasons for the delinquencies do not excuse them nor do they offer any reasonable mitigation. Consequently, the charge in Count I has been proven.

    
    

20. As to Count II, Respondent has an explanation or justification for almost every one of the deficiencies identified by Petitioner in those surveys submitted by him pursuant to Board Order. The Board, however, in its collective expertise, has found them of poor quality and not up to the generally accepted and prevailing standards of land surveying practice in this state. There is ample evidence in the record to support the Board's conclusions.

    
    

21. The question remains, however, as to whether the Petitioner has established the failings of the Respondent with sufficient proof to meet the test imposed by the courts in cases of this nature. After a period of some flux, the Supreme Court of Florida recently settled once and for all the question of the burden of proof required in license discipline cases. The court, in Ferris v. Turlington, So.2d (1987), unequivocally held that the correct standard for the revocation of a professional license is that the evidence must be clear and convincing.

    
    

22. That being settled, review of the evidence presented by Petitioner herein as to Respondent's performance clearly and convincingly indicates that Respondent failed to comply with the standards for land surveying adopted by the Board and set forth in Rule 21H-6, F.A.C. which constitutes a violation of Section 455.227(1)(b), Florida Statutes, and, thereby, Section 472.033(1)(a), as well. It may also be considered negligence in the practice of land surveying in violation of Section 472.033(1)(g).

    
    

23. Having concluded that Respondent has violated the provisions cited in the Administrative Complaint and is, thereby, subject to disciplinary action by

the Board, the question then remains as to what action would be appropriate here. Section 472.033(3) lists the available penalties which range from denial of application for licensure (obviously inappropriate here) to revocation of the license. In a previous disciplinary action, the Board took action which was designed to rehabilitate the Respondent and correct those demonstrated deficiencies. Not only did they apparently fail to do so, Respondent failed timely to comply with the terms of the Board's Order. This indicates with little doubt that Respondent is not overly impressed by the Board's corrective action and his presentation at the hearing tends to confirm this. It is clear that a fine would be ineffective here as would a reprimand. More stringent action is required sufficient to require continuing supervision of the Respondent's activities within the profession.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent's license as a registered land surveyor be suspended for one year and that upon reinstatement his license be placed on probation for five years under such terms and conditions as imposed by the Board as will insure current and continuing review of his activities within the profession.

RECOMMENDED this 24th day of August, 1987, at Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1987.

APPENDIX TO RECOMMENDED ORDER

The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the proposals of the parties.

Petitioner's Proposed Findings of Fact (FOF).

21 - 30. Incorporated in FOF 6.

31 - 33. Accepted.

34. Incorporated in FOF 7.

35 - 37. Incorporated in FOFs 8 and 9. 38, 39. Incorporated in FOF 16.

40. Redundant to Proposed FOF 2.

COPIES FURNISHED:

ALLEN R. SMITH, JR., EXECUTIVE DIRECTOR DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF LAND SURVEYORS

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

DAVID R. TERRY, ESQUIRE

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32301

KENNETH O. HART 3198 RIDDLE ROAD

WEST PALM BEACH, FLORIDA 33406

VAN POOLE, SECRETARY

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

JOSEPH A. SOLE, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

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

================================================================= BEFORE THE BOARD OF PROFESSIONAL LAND SURVEYORS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DOAH CASE NO. 87-2158

vs. DPR CASE NO. 0078982

KENNETH O. HART,

Respondent.

/

AMENDED FINAL ORDER

Respondent, Kenneth J. Hart is a licensed land surveyor in Florida having been issued license number LS 0002934. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the licensee.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to 120.57(1), F.S.; it is attached to and made a part of this Order.

The Board of Professional Land Surveyors met on November 20, 1987, In Tallahassee, Florida to final agency action. The Petitioner was represented by Douglas Beason, Esquire, the Respondent was present but not represented. The board has reviewed the entire record in this case.

The board adopts the findings of fact and conclusions of law, of the recommended order.

PENALTY

Based upon a review of the complete record in this case, the Board hereby determines that the penalty recommended by the hearing officer be modified. In support of modification of the penalty, the Board relies upon the violations contained in the transcript and hearing officer's findings and conclusions, specifically those findings which indicate that Respondent does not fully understand the Minimum Technical Standards. Therefore, it is hereby determined that Respondent pay an administrative fine of $1,000.00 and further, that his license be suspended for 2 1/2 years, (30 months) of which the first 12 months shall be a suspension and the remaining 18 months be stayed to allow an 18 month period of probation as follows:

Within the first six months of probation, Respondent shall furnish proof of attendance at a seminar on the Minimum Technical Standards and shall complete Use Study Guide on, Land Surveying Law and Rules. Within the 18 month period of his probation, Respondent Shall complete legal principles of Land Surveying I and II, Six months after commencement of the probation,' Respondent shall submit five (5) surveys with field notes, and record plats to the Board for its review; if such surveys are satisfactory to the Board, Respondent's probation and stayed suspension may be terminated. If such surveys are not satisfactory to the Board, they will be returned to Respondent with corrections noted, and a random audit of five of Respondent's surveys will be conducted by a Board consultant within 9-12 months after commencement of the probation. This audit shall be pursuant to guidelines adopted by the Board; any surveys previously submitted by Respondent which were reviewed by the Board and had corrections noted shall be reviewed by the consultant during the audit. The consultant shall also ascertain whether the client was furnished with a revised copy of any corrected survey. If the audit demonstrates that Respondent's survey are satisfactory to the Board, Respondent's probation and stayed suspension may be terminated. If such audit demonstrates that Respondent's survey are not satisfactory to the Board, the Board may dissolve the stay of suspension, and suspend Respondent's license for the remainder of the 18 month period.

Respondent may appeal this order within 30 days of its filing pursuant to Section 120.68, Florida Statutes and Florida Rule of Appellate Procedure 9.110(b) and (c).

DONE and ORDERED this 10th day of March, 1988.

BOARD OF PROFESSIONAL LAND SURVEYORS

ALLEN R. SMITH, EXECUTIVE DIRECTOR

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was furnished by hand to Douglas Beason, Esquire 130 North Monroe Street, Tallahassee, Florida 32301 and by Certified Mail to Kenneth O. Hart, 3198 Riddle Road, West Palm Beach, Florida 33406 this 10th day of March, 1988.

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

AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF PROFESSIONAL LAND SURVEYORS

DEPARTMENT OF PROFESSIONAL REGULATION,

petitioner,

vs. DOAH CASE NO. 87-2158

DPR CASE NO. 0078982

KENNETH O. HART,

Respondent.

/

FINAL ORDER

Respondent, Kenneth O. Hart is a licensed land surveyor in Florida having been issued license number LS 0002934. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the licensee.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to 120.57(1), F.S.; it is attached to and made a part of this Order.

The Board of professional Land Surveyors met on November 20, 1987, in Tallahassee, Florida to take final agency action. The petitioner was represented by Douglas Beason, Esquire, the Respondent was present but not represented. The board has reviewed the entire record in this case.

The board adopts the findings of fact and conclusions of law, of the recommended order.

PENALTY

Based upon a review of the complete record in this case, the Board hereby determines that the penalty recommended by the hearing officer be modified. In support of modification of the penalty, the Board relies upon the violations contained in the transcript and hearing officer's findings and conclusions, specifically those findings which indicate that Respondent does not fully understand the Minimum Technical Standards. Therefore, it is hereby determined that Respondent pay an administrative fine of $1,000.00 and further, that his license be suspended for 2 1/2 years, (30 months) of which the first 12 months shall be a suspension and the remaining 18 months be stayed to allow an 18 month period of probation as follows:

Within the first six months of probation, Respondent shall furnish proof of attendance at a seminar on the Minimum Technical standards and shall complete the Study Guide on Land Surveying Law and Rules. Six months after commencement of the probation, Respondent shall submit five (5) surveys with field notes and record plats to the Board for its review; if such surveys are satisfactory to the Board, Respondent's probation and stayed suspension may be terminated. If such surveys are not satisfactory to tide Board, they will be returned to Respondent wit corrections noted, and a random audit of five of Respondent's surveys will be conducted by a Board consultant within 9-12 months after commencement of the probation. This audit shall be pursuant to guidelines adopted by the Board; any surveys previously submitted by Respondent which were reviewed by the Board and had corrections noted shall be reviewed by the consultant during the audit. The consultant shall also ascertain whether the client was furnished with a revised copy of any corrected survey. If the audit demonstrates that Respondent's survey are satisfactory to the Board, Respondent's probation and stayed suspension may be terminated. If such audit demonstrates that Respondent's surveys are not satisfactory to the Board, the Board may dissolve the stay of suspension, and suspend Respondent's license for the remainder of the 18 month period.

Respondent may appeal this order within 30 days of its filing pursuant to Section 120.68, Florida Statutes and Florida Rule of Appellate Procedure 9.110(b) and (c).

DONE and ORDERED this 18th day of December, 1987.

BOARD OF PROFESSIONAL LAND SURVEYORS

JAMES SHISKIN, CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was furnished by hand to Douglas Beason, Esquire, 120 North Monroe Street, Tallahassee, Florida 32301 and by Certified Mail to Kenneth O. Hart, 3198 Riddle Road, West Palm Beach, Florida 33406 this 31st day of December, 1987.

Docket for Case No: 87-002158

Orders for Case No: 87-002158