STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA BOARD OF ) PROFESSIONAL AND SURVEYORS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3443

)

WILLIAM H. MANDISH, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on December 8, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Respondent's license as a professional land surveyor should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.

APPEARANCES

For Petitioner: Elisabeth Alsobrook, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 323990750

For Respondent: William H. Mandish, pro se

262 South May Avenue Brooksville, Florida 33512

BACKGROUND INFORMATION

On April 19, 1987, the Board of Professional Land Surveyors filed an Administrative Complaint in this case alleging that in January, 1987, Respondent failed to maintain minimum technical standards for land surveying in violation of the Florida Statutes and the Rules of the board. On May 3, 1988, Respondent denied the allegations contained in the Administrative Complaint and requested formal hearing and thereafter the matter was referred to the Division of Administrative Hearings for appointment of a Hearing Officer. On July 25, 1988,

K. N. Ayers, H.O., set the case for hearing on September 28, 1988, but, on August 30, 1988, pursuant to Petitioner's Motion for Continuance, the case was postponed until December 8, 1988 at which time it was held as scheduled by the undersigned to whom the case was transferred in the interim.

At the hearing, Petitioner presented the testimony of Thomas E. Kaney and George M. Cole, both licensed professional land surveyors and both qualified as experts in the field of land surveying. Petitioner also introduced Petitioner's

Exhibits 1 through 6. Respondent presented no evidence other than Respondent's Exhibit A, an original plat of the subdivision in question.

A transcript of the hearing was provided and Petitioner submitted Proposed Findings of Fact which, as appropriate, have been accepted and are incorporated in this recommended order.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained herein, Respondent was a licensed Professional land surveyor under registration number LS 0002125, with expiration data of January 31, 1989. Registration was granted by examination on July 14, 1967.

   
   

2. The Board of Professional Land Surveyors, (Board), is the state agency charged with the regulation of professional land surveyors in Florida.

   
   

3. On January 30, 1987, Respondent's firm, Mandish and Associates, Inc., performed a survey of Lot 62, Fairway Village, a subdivision located in Hillsborough County, Florida. As a result of the field, work performed by a crew employed by Respondent, which prepared field notes indicating the layout of the dwelling located on the property in question, and a second set of field notes which consisted of annotations to the original survey of the lot done by Bay Area Engineering Company, Inc., on August 5, 1977, Respondent prepared a survey drawing of the lot in question for the purpose of mortgage and flood certification on January 30, 1987. The document drawing reflects that the crew performing the survey was headed by an individual named Page.

   
   

4. Evaluation of the drawing indicated several defects in the survey process and the matter was referred to Mr. Thomas E. Kaney, a licensed expert surveyor, who reviewed the survey done by Respondent's firm and completed his own field survey of the property. He found that on Respondent's drawing, a railroad spike called for to be on the drawing was not located and that the corner definition was off. He also found that the distances between the structure and the fence were incorrect. In his opinion, the finished drawing could not have been made from the field notes completed by the crew chief. The field notes appeared to be inadequate and did not conform to the survey as finally prepared. In his opinion, the survey drawing conforms to the minimum technical standards in the State of Florida as they pertain to form, but not to accuracy.

   
   

5. Even though Respondent did not personally conduct the survey, he is responsible for the activities of the party chief and if Respondent were aware that the party chief had, made false or misleading notes in the past, he would be negligent if he failed to check the accuracy of these field notes accomplished by that individual. Here, the original party chief was Paul Page. Additional field notes were taken by Mr. Lucas, who did the boundary survey and who had some problems in doing so. Because of these problems, Page did a second survey at Respondent's request and upon his return to the office, indicated that everything was OK and he had picked up the information requested that was not available to Lucas.

   
   

6. However, the field notes done by both Page and Lucas are not sufficient to give an accurate reflection of the front line of the lot in question. The original field notes fail to show angles, bearings, or distances, but show radial ties to the building. Minimal technical standards require that angles, bearings and distances be shown in the final drawing. In the opinion of Mr.

   Kaney, the final drawing, with the exception of the misplaced corner, does conform to minimum standards set forth in the Rule since the misplaced corner creates no real problem and the house is well within the property setback lines.

   
   

7. Mr. Cole, who also evaluated the survey for the Board, is satisfied that the field notes show corners, but it is difficult to tell whether the angles, bearings, or distances shown are on the original notes or were put there subsequently. In his opinion, the field notes are not sufficient to determine the configuration of Lot 62 and for several reasons, the final survey drawing does not conform to minimum technical standards.

   
   

8. First, the type of survey is not indicated. A reference for the bearings shown is not present. There is no comparison on the final drawing with the plat bearings.

   
   

9. Second, no distance to the nearest street intersection is identified. The Department's standards allow a showing of a distance to another point of reference when showing the distance to the nearest street is not practical. In the instant case, the Respondent showed the distance to another point of reference even though the lot in question is only two lots removed from the nearest intersection. While Respondent contends this is a reasonable application of the rule, the witness contends it is not. In light of the fact that this is a suburban subdivision and not acreage, and street references are practical, it is found that this is a discrepancy and deviation from minimum standards.

   
   

10. Finally, Mr. Cole indicates that the discrepancies between bearings and measurements found on the original plat and those on Respondent's drawings are not shown. The precision shown on the map is too high to be reasonable and this leads to the conclusion that remeasurement was not accomplished in this regard, it should be noted that Mr. Cole's review was based only on a review of the documentation and not on his own survey of the property. The property is described as "suburban" where the error permissibility ratio is one part in 7,500. On a 100 foot line, this would equate to approximately one inch. If the Respondents errors were to fall within the authorized tolerance, it would be appropriate to show the actual measurement as opposed to the original measurement. This is, however, a matter of judgement.

    
    

11. The exceptions described by Cole are relatively minor in nature. However, taken as a whole, the Respondent's survey contains errors which, while not the most serious, render the survey less than compatible with minimum technical standards within the community.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Section 472.033(1), Florida Statutes, permits the Board to discipline the license holder:

    
    

    1. Upon proof that the licensee is guilty of fraud or deceit or of gross

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

       or

    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 ...

       
       

14. Under the provisions of Rule 21HH-2.001(1), F.A.C.:

    
    

    1. A registered land surveyor shall not be negligent in the practice of land surveying. The term "negligence" set forth in Section 34(1)(g), Chapter 79- 243, Laws of Florida, is herein defined 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 pursuant to Section 36, Chapter 79-243, Laws of Florida.

       
       

15. Rule 21HH-6.003(2), F.A.C., in pari materia provides:

    
    

    All measurements made in the field must be in accordance with the United States standards using either feet or metric, and made with a transit and steel tape, or other devices with an equivalent or higher degree of accuracy. With the exception of geodetic surveys, all measurements shall defer to either horizontal or vertical plane. All computed distances and bearings must be accurate field measurement.

    
    

16. The rule also provides:

    
    

    1. ... Where bearings are recited in the deed description, or on the original plat of the land being surveyed, a comparison of the deed or plat bearings with the bearings used shall be shown on all courses. In all cases, the bearings used shall be referenced to some well- established line.

    
    

    1. All angles shall be shown directly on the drawing or by bearings or azimuths. Where lines are curved, the significant elements of the curve shall be shown upon the drawing. However, when intersecting lines are non-radial, no less than the

       delta, radius, and arc, and chord bearing or angle shall be shown upon the drawing...

       
       

    2. In all areas where recorded lots and blocks are established, the measured distances to the nearest intersection of a street or right of way shall be shown upon the drawing. ...If because of unusual block lengths, this is not practical, distances to other identifiable survey point may be used.

    
    

    (18) The surveyor shall make a determination of the correct position of the boundary of the real property and shall set monuments, as defined herein, unless monuments already exist at such corners. All monuments, found or placed, must be described on the survey drawing with data given to show their location upon the ground in relation to the boundary lines. When the property corner cannot be set, a witness monument shall be placed and so noted upon the survey drawing.

    
    

17. The uncontroverted testimony of Mr. Kaney and Mr. Cole clearly establishes that the Respondent's survey, either conducted by him or under his supervision and responsibility, failed to conform to the requirements of the rule particulars as set out and failed to conform to the minimal technical standards as outlined therein. The fact that the errors or omissions were not of great magnitude is irrelevant as it pertains to the issue of negligence. This factor may be considered in assessing the discipline to be imposed, however.

    
    

18. In that regard, the Board recognizes that penalty may relate to the severity of the offense and harm to the consumer or public. The evidence of record indicates the infractions here were minimal in severity and resulted in little if any harm to the client. Consequently, revocation or Respondent's license would not be appropriate.

RECOMMENDATION

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

RECOMMENDED that the Respondent, William H. Mandish, be reprimanded and ordered to pay an administrative fine of $250.00.

RECOMMENDED this 7th day of February, 1989 at Tallahassee, Florida.

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

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1989.

COPIES FURNISHED:

Elizabeth Alsobrook Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

William H. Mandish

262 South May Avenue Brooksville, FL 33512

Allen R. Smith, Jr.

Executive Director

Board of Professional Land Surveyors Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Bruce D. Lamb General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Docket for Case No: 88-003443

Orders for Case No: 88-003443