STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) DOAH CASE NO. 88-2748

) DPR CASE NO. 0092615

FREDERICK R. BOLT, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on January 10, 1989, a formal hearing was held in this cause in accordance with Section 120.57(1), Florida Statutes. Charles C. Adams served as the Hearing Officer. The location of the hearing was the City Council Chambers, Crestview, Florida. This Recommended Order is being entered following the receipt and review of the transcript of proceedings, the exhibits and the proposed recommended orders of the parties. In that connection, the fact finding suggested by those proposals is discussed in an Appendix to the Recommended Order, which is attached.

APPEARANCES

For Petitioner: George W. Harrell, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Charles A. Wade, Esquire

335 North Main Street Crestview, Florida 32536

ISSUES

The issues in this case are those which arise through the allegations set forth in an Amended Administrative Complaint brought by the State of Florida, Department of Professional Regulation against the Respondent. In its operative terms, Respondent is said to have committed violations of Sections 472.033(1)(g) and (h) and 472.005(4)(b), Florida Statutes. Factually, Respondent is said to have entered into a contract with Leonard Freed for the performance of land surveying services on a parcel of property which Freed owned. The contract price is said to be $6,000.00. Allegedly the Respondent began and had partially performed the work and had received $3,000.00 from Freed in payment. Respondent is alleged to have been negligent in his performance of the job in that he based an initial survey on a preliminary lot layout in contravention of the requirements of Chapter 21HH-6, Florida Administrative Code. It is further alleged that the contract entered into between the Respondent and Freed was such that the Respondent was called upon to design streets and layouts to include grades and drainage and that this arrangement exceeds the scope of the

Respondent's land surveyors license. Finally, some reference is made to the fact that Respondent had previously been disciplined by the Board of Land Surveyors in Case No. 54633 for which he was fined $1,000.00 and ordered to serve 27 months probation, through the terms of a Final Order entered by that Board on October 1, 1985.

FINDINGS OF FACT

1. Those persons who are engaged in the profession of land surveying in the State of Florida are licensed by and subject to the discipline of the State of Florida, Department of Professional Regulation, Board of Professional Land Surveyors. This arrangement is in conjunction with the requirements of Chapters 120, 455, and 472, Florida Statutes and rules associated with those statutory provisions.

   
   

2. At all times relevant to this case, Respondent, Frederick R. Bolt, was licensed as a Professional Land Surveyor through the State of Florida, Department of Professional Regulation and held license number LS 0003510.

   
   

3. On or about July 31, 1987, Respondent entered into a contract with one Leonard Freed to perform land survey services on a parcel of property owned by Freed. Said parcel of property is described in the contract as the Dorcas property. Total contract price was $6,000.00. According to the contract, a copy of which may be found as part of Petitioner's Composite Exhibit No. 2, part of the work to be done by Respondent related to the Dorcas parcel was "street design & layout to include all grades and drainage." At the point and time where the contract was signed Respondent was paid $1,000.00. Subsequently, on August 18, 1987, a second installment of payment was given to the Respondent in the amount of $2,000.00.

   
   

4. As related in Petitioner's Exhibit No. 8, Respondent had been the subject of disciplinary action by the Board of Professional Surveyors on a prior occasion. In that instance, the Respondent was found in violation of Sections 472.021 and 472.027, 472.033(1)(a), (g) and (h) and 455.227(1)(b) Florida Statutes, as well as Rules 21HH-2.01 and 21HH-6, Florida Administrative Code. The gravamen of the Administrative Complaint which underlies this prior disciplinary action related to the performance of his land surveying work and the performance of that work through a firm which had utilized a fictitious name and that had not been possessed of a certificate of authorization as required by Chapter 472, Florida Statutes. A $1,000.00 fine was imposed and the Respondent was placed on a period of probation for 27 months from the date of the Final Order, which date is October 1, 1985. During the probationary period Respondent was required to submit 25 surveys over to the Board for its review, representative of his practice and accompanied by field notes and record plat.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. The burden of proof in this case is required of the Petitioner and that proof must be by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

7. Through the allegations that have been described in the Issues statement to this Recommended Order, Respondent is said to have violated Sections 472.033(1)(g) and (h), Florida Statutes. Those provisions state:

   
   

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

      * * *

      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; or failing to comply with a lawfully issued subpoena of the department;

      
      

8. Reference is also made in the complaint to Section 472.005(4)(b), Florida Statutes, which is a provision under the definitional section of this law. It states:

   
   

   (b) The practice of land surveying also includes,...the determination of, but not the design of, grades and elevations of roads and land in connection with subdivisions or divisions of land;...

   
   

9. No proof was offered which would tend to show that the Respondent was negligent in the performance of the Freed work through basing an initial survey on a preliminary lot layout not in accordance with Chapter 21HH-6, Florida Administrative Code. It has been shown that by the terms of the contract entered into with Mr. Freed, Respondent agreed to design streets and layouts to include the grades and drainage associated with the design and layout, activities which are beyond the practice of land surveying as set forth in Section 472.005(4)(b), Florida Statutes. In entering into this contract, Respondent committed an act of misconduct in the practice of land surveying as defined in Section 472.033(1)(g), Florida Statutes and violated Section 472.033(1)(h), Florida Statutes by agreeing to do work through the contract outside the practice of land surveying alluded to in Section 472.005(4)(b), Florida Statutes. These violations have been established whether or not the Respondent carried forth the agreement for street design and layout including all grades and drainage as called for by the contract. Respondent has not been guilty of a violation of any other substantive allegations set forth in the statutory references found within the Administrative Complaint related to the entering into a contract for street design and layout to include all grades and drainage.

   
   

10. For the violations that have been shown, Respondent is subject to discipline contemplated by Section 472.033(3), Florida Statutes. In that regard, his prior disciplinary circumstance as described in the fact finding may be considered in the imposition of a penalty. See 21HH-9.002 and 9.003, Florida Administrative Code.

Upon consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED that a Final Order be entered imposing an administrative fine of $1,000.00.

DONE and ENTERED this 20th day of March, 1989, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 March, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2748

The following discussion is made of the proposed facts of the parties:

Petitioner's facts are subordinate to the facts set forth in the Recommended Order.

Respondent through the proposed recommended order and reply to the Petitioner's proposed recommended order has offered legal argument with reference to some of the matters presented in the course of the final hearing and, as such, do not constitute factual proposals. Furthermore, the argument that is suggested in these submissions by Respondent are dealt with in the course of the Recommended Order.

COPIES FURNISHED:

George W. Harrell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Charles A. Wade, Esquire

335 North Main Street Crestview, Florida 32536

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

130 North Monroe Street Tallahassee, Florida 32399-0755

Kenneth E. Easley, Jr., Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-002748

Orders for Case No: 88-002748