Judges: ARNOLD H. POLLOCK
Agency: Department of Business and Professional Regulation
Latest Update: Aug. 29, 1988
Summary: Evidence which shows surveyor failed to meet standards in work and is negligent is clear and convincing and supports discipline
88-2745.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, BOARD OF ) PROFESSIONAL LAND SURVEYORS. )
)
Petitioner, )
)
vs. ) CASE NO. 88-2745
)
THEODORE C. BOLDT, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in Sarasota, Florida on August 9, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration is whether Respondent's license as a land surveyor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
APPEARANCES
For Petitioner: G. W. Harrell, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399
For Respondent: Theodore C. Boldt, pro se
5424 Hayden Boulevard
Sarasota, Florida 33582 BACKGROUND INFORMATION
On April 19, 1988, Douglas A. Shropshire, Chief Section Attorney, Tectonics Section, Department of Professional Regulation, filed an Administrative Complaint in this case alleging that the Respondent violated Section 472.033(1), Florida Statutes, by submitting land surveys for review by the Board of Professional Land Surveyors, which failed to comply with minimum technical standards for land surveying in Florida. Respondent disputed the allegations of fact and requested a formal hearing. On June 2, 1988, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. On June 16, 1988, the undersigned set the case for hearing on August 9, 1988 and the matter was heard as scheduled.
At the hearing, Petitioner presented the testimony of Walter A. Paxton, Jr., a registered land surveyor and expert in that field, and, by deposition, the testimony of Allen R. Smith, Jr., Executive Director of the Board of Professional Land Surveyors. Petitioner also introduced Petitioner's Composite Exhibits 1 and 2. Respondent testified in his own behalf but did not present any documentary evidence.
No transcript of the hearing was provided and neither party submitted proposed Findings of Fact.
FINDINGS OF FACT
At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, Theodore C. Boldt, was a professional land surveyor registered by the State of Florida under license Number LS002387, granted after examination on July 9, 1976, with an expiration date of January 31, 1989. The Department of Professional Regulation, Board of Professional Land Surveyors, (Board), was and is the state agency charged with the regulation of land surveying in this state.
On August 5, 1985, the Board entered a Final Order in which it concluded Respondent had violated various sections of the Florida Statutes and Rules. The Board suspended Respondent's license to practice land surveying for six months and, inter alia, required him to submit twenty-five surveys representative of his land surveying practice, accompanied by field notes and record plats for review by the Board.
Respondent has submitted fifteen of the surveys, the first ten of which were accepted by the Board. Survey eleven through fifteen, however, were determined to be unsatisfactory. On the basis of that Board determination, an Administrative Complaint was filed in this case alleging that the five surveys failed to meet minimum acceptable standards and thereby constituted a violation of Florida Statutes.
The surveys in question were evaluated by Walter A. Paxton, Jr., a registered land surveyor for fifteen years, who has spent a total of thirty-five years in the surveying field. During the course of his career, he has done several thousand surveys and has never had a complaint filed against him. As a part of his practice, he keeps up with the Rules and Standards of the profession by review of agency bulletins and letters and by taking continuing education seminars.
Mr. Paxton graded these surveys utilizing a Minimum Standards Probation Report Checklist which identified numerous items for evaluation and grading. Grades available included violation; acceptable, which means that the answer meets the requirements of the rules; not applicable, which means that the subject matter does not pertain to the case under consideration; and marginally acceptable, which refers to an error of a minor nature, such as a typographical error, which is not a true violation of the Rule setting forth minimum standards.
With regard to the first survey evaluated, Survey Exhibit 11, Mr. Paxton found one violation. Under the pertinent rule, each survey must fall into a descriptive category to be designated on the drawing. In this case, Respondent described the survey as a "Boundary" survey when, in fact, it should have been described as "As Built." A "Boundary" survey is generally utilized only for raw acreage and this property had a structure built on it. Mr. Paxton also found one marginally acceptable item in that the survey did not reflect the relevant Rule under which the survey was conducted.
As to Survey Exhibit 12, Mr. Paxton found two violations. Again, the type of survey described was wrong and the survey failed to show the lot dimensions on the West side of the final drawing. The field notes reflected 81
feet for the West side of the lot. Of the four marginally acceptable issues, the first dealt with the completeness of the survey and relates to the Respondent's failure to put in the total dimensions as described above. In the second, the drawing failed to show the bearings on the finished product. The third relates to Respondent's failure to indicate the adjoining lot and block number on the South side of the drawing. The fourth pertains to Respondent's failure to reflect the Rule number in his certification. This last was a deficiency in each of the five surveys in question.
As to survey Number 13, Mr. Paxton found one violation which again related to Respondent's use of the term "Boundary" survey instead of "As Built" on a survey of a lot on which a structure has been erected. Two marginally acceptable items related to the failure to show the Rule in the certification and Respondent's failure to list both lot and block when identifying lots adjacent to the property under survey. This, too, is a repeat deficiency.
In the fourth survey, Number 14, Mr. Paxton found three violations and three marginally acceptables. The violations related to the Respondent's failure to show a Block identification on the survey and his showing only of the lot number. The second was that Respondent's field notes did not indicate a closure on elevation, but instead, showed only the elevation from the benchmark to a point on the ground. Respondent admitted this was a violation. The third related to Respondent's failure to indicate the original benchmark on the drawing but only the site benchmark. In this case, Respondent admits to this but indicates he could not find the original benchmark because of the distance from the site of the survey. He described the search therefor as being "hard" to do.
The marginally acceptable items on this survey again relate to Respondent's failure to show the Rule number in the certification portion of the survey; his failure to include the Block number in addition to the Lot number on the sketch; and his failure to identify adjoining property Lot and Block numbers on the drawing.
The fifth survey contained two violations and four marginally acceptable items. The violations were, again, the failure to properly describe the survey as "As Built", and the failure to indicate angles on the field notes. The four marginally acceptables relate to the Respondent's failure to refer to the Rule in his certification; his failure to indicate the block number as well as the lot number on the sketch; the failure to maintain acceptable quality field notes (the failure to list the angles as required); and the failure to reflect on the second sketch of this property a revision date indicating the first sketch was changed.
Based on the above identified violations and marginally acceptable items, Mr. Paxton concluded that the surveys in question here do not meet the acceptable standards of the State of Florida for surveys and it is so found.
Respondent does not deny that the actions alleged as violations or marginally acceptable areas occurred. He objects, however, to the fact that they were described as violations. Mr. Boldt has been in the surveying profession for 49 years, having started with his father at the age of 10. It is his practice not to put the Block number on a survey unless Lots beside or behind the Lot being surveyed are in a different Block. This practice has been accepted by various banks and the county since he has been doing it and certainly since 1983, when the subject was made a matter of Rule. By the same token, banks and the county have also for years accepted without question his
use of the descriptive term, "Boundary" for the type of survey. Accepted use is irrelevant, however, if the rules in question prescribe otherwise.
From his testimony it can only be gathered that Respondent complies with the Rules "when he can." When Mr. Paxton pointed out that the requirements identified here appear in the Rules of the Board, Respondent pointed out that the Rules were "new Rules". This approach to the profession of land surveying, while satisfactory to him, is not acceptable when measured against the Board rules.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
In its Administrative Complaint filed herein, Petitioner alleges that Respondent has violated Sections 472.033(1)(a),(g), and (h), and Section 455.227(1)(b), Florida Statutes
Section 472.033 provides that the Board may take disciplinary action against a licensee for:
Violation of any provision of s. 472.031 or s. 455.227(1);
* * *
...proof that the licensee is guilty of fraud, or deceit, or of negligence, incompetency, or misconduct in the practice of land surveying;
* * *
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, ....
Section 455.227(1)(b) gives a board the power to discipline a license if it finds that:
* * *
(b) The licensee has intentionally violated any rule adopted by the board or the department.
* * *
Petitioner also alleges Respondent has violated Rules 21HH-2.001(3) and 21HH-6.003, Florida Administrative Code.
The former, Rule 21HH-2.001(3), provides that a registered land surveyor shall not be negligent in the practice of land surveying and 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 minimal technical standards for land surveying promulgated by the board....
The minimal technical standards for surveys (field and office) are found in Rule 21HH-6.003(1) through (20).
When an agency attempts to discipline a professional license, as here, it has the burden of establishing the misconduct upon which it relies by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292, (Fla 1987).
The evidence introduced by the Petitioner in this case, and not contested by Respondent, shows that in the particulars set out and described by Mr. Paxton in his evaluation of each of the five surveys in question, Respondent failed to conform to the standards which are set forth in the Rule. Having established that the standards were not met, and it matters not that compliance may be "hard" or the rules "new", Respondent's failure to conform constitutes negligence as defined in Rule 21HH- 2.001(3). Since Respondent has been found guilty of negligence, he is also guilty of a violation of Section 472.033(1)(g), and is also guilty, by virtue of his failure to comply with the rules of the Board, of Sections 455.227(1)(b) and 472.033(1)(a) and (h).
Subsequent to the hearing, Respondent submitted a letter which constitutes the result of a survey he sent to members of the Charlotte County chapter of an organization not further identified (presumably made up of surveyors), which relates to various standards followed by surveyors in the field as they relate to the methods of drafting. It is irrelevant for the purposes of this hearing that other surveyors might do things the same way Respondent does if both those individuals and Respondent are in violation of the Rules by doing so. In any event, it does not appear that the submission was forwarded to counsel for the Board and it is not considered as evidence.
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 in Florida be suspended for 18 months with such suspension to be stayed for a probation period of 18 months under such terms and conditions as the Board of Professional Land Surveyors may specify.
RECOMMENDED this 29th day of August, 1988, 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 29th day of August, 1988.
COPIES FURNISHED:
G. W. Harrell, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399
Theodore C. Boldt 5424 Hayden Blvd.
Sarasota, Florida 33582
Allen R. Smith, Jr.
Executive Director
DPR, Board of Professional Land Surveyors
130 North Monroe Street Tallahassee, Florida 32399-0750
Bruce D. Lamb, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Docket for Case No: 88-002745
Orders for Case No: 88-002745
| Issue Date |
Document |
Summary |
|
Aug. 29, 1988 |
Recommended Order
|
Evidence which shows surveyor failed to meet standards in work and is negligent is clear and convincing and supports discipline
|
