STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Cases Nos. 88-2743

) 89-3399

AMONS D. COURTNEY, JR., )

)

Respondent. )

)

)

RECOMMENDED ORDER

These consolidated cases came on for hearing in Milton, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on August 9, 1989. The Division of Administrative Hearings received the hearing transcript on September 8, 1989, and petitioner filed a proposed recommended order on September 22, 1989. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

Respondent failed to appear either in person or through counsel.

Petitioner was represented by:

Elizabeth Renee Alsobrook 1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729 STATEMENT OF THE ISSUES

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaints?

PRELIMINARY STATEMENT

By administrative complaint dated April 19, 1988, petitioner alleges that respondent has held license No. LS 0002819 at all pertinent times, and that he violated a condition of probation imposed by the final order entered in Case No. 0052302 on October 3, 1985, which required that he "submit a specified number of surveys to the Board for its review at stated intervals during the probationary period," in that the plans he submitted "do not comply with minimum technical standards for land surveying . . . as . . . set forth in Chapter 21 HH-6, Florida Administrative Code," all in violation of "Sections 472.033(1)(a), (g), and (h) and 455.227(1)(b), Florida Statutes and Rules 21 HH-2.001(3) and 21 HH- 6.003, Florida Administrative Code". Case No. 88-2743.

In a second administrative complaint, filed January 4, 1989, petitioner alleges that respondent has been licensed at all pertinent times and that he furnished the Board of Land Surveyors "certain . . . surveys and sketches" which demonstrated negligence "as negligence is defined in Board Rule 21 HH- 2.001(3), thus violating Section 472.033(1)(g) and (h)"; and that "surveys and sketches submitted by respondent to the Board were performed under the company name of `Courtney and Tisdale Ent., Inc.' which name has not been issued a Certificate of Authorization by the Board, violating Section 472.021(2)." Case No. 89-3399.

After petitioner transmitted the administrative complaints (and requests for hearing addressed to each) to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987), the two separately docketed cases that resulted were consolidated.

FINDINGS OF FACT

1. At all pertinent times respondent Amons D. Courtney, Jr., has been registered as a professional land surveyor holding license No. LS 002819 issued by petitioner.

   
   

2. By order entered October 3, 1985, in case No. 0052302, the Board of Professional Land Surveyors placed respondent on probation for the second time.

   As a condition of probation, he was required to

   
   

   submit 25 surveys representative of his land surveying practice which shall be accompanied by field notes and record plats to the Board for its review. . . .

   Five surveys shall be submitted within three months from the filing of the final order; thereafter, five surveys shall be submitted at six month intervals during the period of probation.

   
   

   Petitioner's Exhibit No. 11. As far as the evidence disclosed, Mr. Amons submitted the requisite number of surveys for review, within the times specified by the Board's order, but pertinent record plats did not always accompany these submissions.

   
   

3. Among the surveys submitted to the Board in accordance with the probation condition was a survey done for James Harvey by Mr. Courtney, doing business as "Courtney-Tisdale Ent., Inc." Petitioner's Exhibit No. 1. "Courtney & Tisdale Ent., Inc." has never been licensed in Florida, nor did petitioner ever issue a certificate of authorization to any such entity. Petitioner's Exhibit No. 8.

   
   

4. Among the surveys Mr. Courtney furnished to the Board in accordance with his probation condition, was one he did for Cynthia Cotton. On this survey, respondent failed to report or resolve a discrepancy between a distance he had measured, as reported in field notes, and the calculated distance he set out without qualification, on the survey. He also reported the length of one side of the lot as precisely 125 feet, despite the absence of any field notes to support this conclusion. Petitioner's Exhibit No. 3.

   
   

5. Mr. Courtney performed a survey of a rectangular lot for Kim Shepherd, and subsequently furnished a copy of it to the Board. The accuracy of this

   survey is open to serious question. Petitioner's survey reported lengths for the lot's sides that correspond precisely to what appears on the record plat. This is also the case with the angles the sides form when they meet, even though "it's almost impossible to repeat [such measurements] to the nearest second of ar[c]." T.123. The field notes reflect no measurements that would support these findings. Mr. Amons reset a back monument nevertheless. Petitioner's Exhibit No. 4.

   
   

6. On the Larry Holly survey, also chosen by respondent for Board review, Mr. Courtney failed to disclose a discrepancy between the measured distance, as reported in field notes, and a distance set out on a record plat. Petitioner's Exhibit No. 5.

   
   

7. On the Robert and Connie Baxley survey, Mr. Courtney indicated a discrepancy between the south boundary line and a fence along the line but did not show whether the fence encroached on the Baxley property or on the neighbor's. Petitioner's Exhibit No. 6. The field notes reflect "a startling lack of precise measurements."

   
   

8. On the Randy Enslow survey, too, the field "notes are insufficient to support the precision of the measurements that are shown . . ." T.13l. The survey is not tied to the closest street corner or to any other outside reference point for control.

   
   

9. In short, even though the Board's final order in case No. 0052302 left it to respondent to select "representative" surveys for review, the surveys he submitted, twenty in all, were riddled with errors, including errors and omissions that constituted negligence in the practice of surveying.

   
   

10. The uncontroverted evidence established that "Mr. Courtney is either unable or unwilling to comply with the Minimum Standards based on the surveys that were submitted by him under probation." T.134.

    
    

11. As to penalty only, petitioner proved that respondent was a subject of disciplinary action in case No. 33882, before either the present proceedings or the proceedings that eventuated in the probation order were instituted.

    
    

    CONCLUSIONS OF LAW

    
    

12. Because petitioner referred the respondent's hearing requests to the Division of Administrative Hearings, the "division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1987).

    
    

13. The Board of Professional Land Surveyors is authorized to revoke or suspend land surveyors' licenses or take other disciplinary action against them on these statutory grounds, among others:

    
    

    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 negligence, incompetency, or misconduct, in the practice of land surveying.

       2. Failing to perform any statutory or legal obligation placed upon a licensed land surveyor; 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.

       . . .

       Section 472.033(1), Florida Statutes (1987). A Board rule defines negligence as the failure by a registered land surveyor

       to utilize due care in performing in a land

       surveying capacity, to fail to have due regard for acceptable standards of land surveying principles, or to fail to follow minimum technical standards for land surveying promulgated by the Board . . .

       
       

       Rule 21 HH-2.001(3), Florida Administrative Code. The provisions of Section 455.227(1), Florida Statutes (1987) afford additional authority for disciplinary action against licensees who intentionally violate Board rules or make "misleading, deceptive, untrue or fraudulent misrepresentations in the practice of," Section 445.227(1)(b), Florida Statutes (1987) surveying.

       
       

14. License revocation proceedings have been said to be "`penal' in nature." State ex. re. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

    391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

    
    

15. Petitioner proved clearly and convincingly that respondent repeatedly violated minimum technical standards, including those set out in Rule 21 HH- 6.003(1), Florida Administrative Code ("a survey must be full and complete"), Rule 21 HH-6.003(2), Florida Administrative Code ("computed distances and bearings must be supported by careful and accurate field measurements") and Rule

    21 HH-6.003(a), Florida Administrative Code ("where recorded lots and blocks are established, the measured distances to the nearest intersection of a street or right of way shall be shown"), and was, therefore, guilty of repeated negligence in the practice of land surveying, in violation of Section 472.033(1)(g), Florida Statutes (1987).

    
    

16. Petitioner also proved that respondent violated the probation condition in failing to furnish plats with each survey to which they pertained, and that he violated Section 472.021(2), Florida Statutes (1987) by practicing under the name of a corporation that had no certificate of authorization, all in violation of Section 472.033(1)(n), Florida Statutes (1987). It cannot be said, however, that negligence respondent committed in preparing the surveys he submitted to the Board violated a condition of his probation.

RECOMMENDATION

Under Rule 22 HH-9.002, Florida Administrative Code, permissible penalties for these offenses range from reprimand to revocation "depending upon severity of offense and injury to the client or public". No injury was proven here, but expert testimony established the seriousness of the negligence. Also pertinent under Rule 22 HH-9.003, Florida Administrative Code, are previous offenses, respondent's disciplinary history, and "status of the . . . licensee at the time the offense was committed", Rule 22 HH-9.003(1)(f), Florida Administrative Code, all of which weigh against respondent, and financial hardship for the licensee, as to which there is no evidence.

It is, accordingly, RECOMMENDED:

That petitioner revoke respondent's license to practice land surveying. DONE and ENTERED this 20th day of November, 1989, at Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NOs. 88-2743, 89-3399

Petitioner's proposed findings of fact Nos. 1 through 6 and 18 have been adopted, in substance, insofar as material.

Petitioner's proposed findings of fact Nos. 7 through 13 are properly proposed conclusions of law.

Petitioner's proposed findings of fact Nos. 14 through 17 relate to subordinate matters.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32390-0729

R. Glenn Arnold

Warfield, Santurri & Arnold

25 West Cedar Street Post Office Box 13410 Pensacola, Florida 32591

Amons D. Courtney, Jr. Route 4, Box 892

Milton, Florida 32570

Docket for Case No: 88-002743

Orders for Case No: 88-002743