STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

vs. ) CASE NO. 91-7302

)

GARY D. HUNT, )

)

Respondent. )

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

)

Petitioner, )

vs. ) CASE NO. 91-8259

)

GARY D. HUNT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on April 9, 1992, in Orlando, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: William S. Cummins, Senior Attorney

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Gary D. Hunt, pro se

247 Lake Ellen Drive Casselberry, Florida 32707

STATEMENT OF THE ISSUES

The central issue in case no. 91-7302 is whether the Respondent is guilty of the violations alleged in the administrative complaint dated October 14, 1991; and, if so, what penalty should be imposed.

The central issue in case no. 91-8259 is whether the Respondent is guilty of the violations alleged in the administrative complaint dated November 11, 1991; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The administrative complaint in case no. 91-7302 alleged that Respondent had violated provisions of Section 472.033, Florida Statutes, in the preparation of a survey for a Mr. Michael Lengfellner. More specifically, that complaint charged that Respondent had violated provisions of Chapter 21HH-6.003, Florida Administrative Code, by failing to accurately depict required information on the survey drawn or by incorrectly citing bearings and distances. Because of the alleged deficiencies, the Department alleged that Respondent had violated Section 472.033(1)(h), Florida Statutes, since he had failed to comply with rule guidelines, and had violated Section 472.033(1)(g), Florida Statutes, by being guilty of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of land surveying.

The Respondent executed an election of rights, disputed the facts alleged in the amended administrative complaint, and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Accordingly, case no. 91-7302 was forwarded to the Division of Administrative Hearings for formal proceedings on November 13, 1991.

At the hearing, the Department entered an ore tenus motion to strike portions of the complaint which it did not intend to pursue. Those allegations, contained in paragraph 5, related to a five foot wide utility and drainage easement and the front house ties. In paragraph 6, the Department sought to strike the allegation related to the five foot wide utility and drainage easement. The request was granted and Petitioner presented no evidence related to those allegations.

Case no. 91-8259 began on November 11, 1991, when the Department filed an administrative complaint against the Respondent that alleged that Respondent had violated provisions of Section 472.033, Florida Statutes, in the preparation of surveys. More specifically, this complaint charged that Respondent had violated provisions of Chapter 21HH-6.003, Florida Administrative Code, by failing to accurately depict information that should have been shown on the survey drawn or by incorrectly citing bearings and distances. Because of the alleged deficiencies, the Department alleged that Respondent had violated Section 472.033(1)(h), Florida Statutes, since he had failed to comply with rule guidelines, and had violated Section 472.033(1)(g), Florida Statutes, by being guilty of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of land surveying.

The Respondent executed an election of rights, disputed the facts alleged in the administrative complaint, and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Accordingly, case no. 91-8259 was forwarded to the Division of Administrative Hearings for formal proceedings on December 23, 1991.

At the hearing, the Department entered an ore tenus motion to amend a portion of the complaint by altering the wording in paragraph 10 to allege that the access easement was incorrectly depicted because it was shown as though it only covered that part of the parcel west of the centerline. Without objection, this request was granted.

The Department presented the testimony of the following witnesses: Byron B. Bonyadi, an architect and general contractor who has retained Respondent to perform surveys; David R. Rothery, a professional land surveyor registered in Florida; and Thomas E. Kaney, a professional land surveyor, registered in

Florida. The Department's exhibits, marked for identification as Petitioner's exhibits 1 through 10, were received into evidence. The Department requested, and official recognition has been taken, of portions of Chapter 21HH-6 entitled "Minimum Technical Standards." Copies of those provisions, represented and stipulated to be the ones applicable to the cases at issue, have been retained with the exhibits presented in this cause.

Respondent presented the testimony of Byron B. Bonyadi. Respondent's exhibits numbered 1 and 2 were admitted into evidence. The transcript of the hearing was filed with the Division of Administrative Hearings on May 1, 1992. The Department filed a proposed recommended order which has been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. At all times material to this case, Respondent has been licensed as a land surveyor in the State of Florida, license no. LS

   
   

2. Respondent signed and sealed three surveys for property belonging to Mr. and Mrs. Michael Lengfellner. Those surveys (received in evidence as Petitioner's exhibits 2, 3, and 4) were prepared and certified by Respondent to be in compliance with the Minimum Technical Standards found in Section 472.027, Florida Statutes, and Chapter 21HH-6, Florida Administrative Code.

   
   

3. With regard to Petitioner's exhibit 2, the survey drawing shows a 90 degree right angle corner at the northeast property corner when that angle should have been depicted at the southeast corner. The plat for the property shows the 90 degree corner at the southeast corner. Further, the survey reflects incorrect bearing and distances along the easterly property line. Additionally, the angular data provided for the non-radial side of the property lines is not shown on the survey. When a non-radial line is shown, additional information must be given to clarify the dimensions. Such information is not shown on Petitioner's exhibit 2.

   
   

4. With regard to Petitioner's exhibit 3, the Respondent, again, did not provide the non-radial line angular data. More specifically, no data was depicted showing the delta, radius, and arc, or chord bearing or angle.

   
   

5. With regard to Petitioner's exhibit 4, the Respondent, again, omitted the non-radial line data described above. Further, while Respondent's field notes state the survey was tied to a permanent reference monument, that information was not depicted on the survey drawing. Bearings for the well- defined line relied upon by Respondent were not indicated on the drawing. The survey drawing also did not compare the measured direction and distances in relation to the recorded direction and distances. Finally, this survey failed to provide a legend for abbreviations used in the drawing. Any abbreviation not listed by rule must be explained in a legend.

   
   

6. Respondent signed, sealed and certified the survey drawing identified as Petitioner's exhibit 7.

   
   

7. With regard to Petitioner's exhibit 7, the Respondent failed to depict the partial lot distances in the survey drawing. The fractional parts of the

   lots (lots 14 and 15) were not shown on the drawing. Fractional parts of a lot excluded from the surveyed description should be dimensioned.

   
   

8. Respondent did not show the distance to the nearest street line or identifiable reference in Petitioner's exhibit 7. Nor did the survey drawing depict the distance to a well defined corner or block corner. In short, the survey did not reference an identifiable point.

   
   

9. The Respondent did not provide a legend for the survey drawing, Petitioner's exhibit 7, which explained all abbreviations used on the drawing.

   
   

10. The fence depicted on the west boundary of the lots is not related to the boundary lines. Since the fence is pertinent to the survey, the relationship of the fence to the boundary lines should be explained on Petitioner's exhibit 7.

    
    

11. Respondent failed to refer Petitioner's exhibit 7 to a specific well- established line.

    
    

12. Respondent did not disclose the type of survey performed on Petitioner's exhibit 7.

    
    

13. Respondent signed, sealed, and certified the survey drawing identified as Petitioner's exhibit 9.

    
    

14. With regard to Petitioner's exhibit 9, Respondent failed to identify the type of road (public or private) depicted on the survey. Further, the first course of the legal description was not shown on the survey drawing. Even if the first course were an easement, it should be depicted on the drawing to reflect the property's access interest as that property is described in the legal description for the parcel.

    
    

15. The errors or omissions noted above catalog the instances where Respondent failed to comply with the minimum technical standards for surveys.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

17. Section 472.033, Florida Statutes, provides, in pertinent part:

    
    

    1. Disciplinary proceedings.

       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;

    * * *

    1. The board shall specify by rule the acts or omissions which constitute a violation of subsection (1).

    2. When the board finds any land surveyor guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       1. Denial of an application for licensure.

       2. Revocation or suspension of a license.

       3. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

       4. Issuance of a reprimand.

       5. Placement of the land surveyor

          on probation for a period of time and subject to such conditions as the board may specify.

       6. Restriction of the authorized scope of practice by the land surveyor.

       
       

18. Section 472.027, Florida Statutes, provides:

    
    

    472.027 Minimum technical standards for land surveying.

    The board shall adopt rules relating to the practice of land surveying which establish minimum technical standards to assure the achievement of no less than minimum degrees of accuracy, completeness, and quality in order to assure adequate and defensible real property boundary locations and other pertinent information provided by land surveyors under the authority of ss.

    472.001-472.039.

    
    

19. Rule 21HH-6.003, Florida Administrative Code, contains the provisions which outline the minimum technical standards to be applied for surveys. The pertinent provisions of that rule in effect for the period April 29, 1986 through December 17, 1988 are as follows:

    
    

    1. A reference to all bearings shown must be clearly stated, i.e., whether to "True North"; "Grid North as established by the NOS"; "Assumed North based on a bearing for a well defined line, such as the center line of a road or right of way, etc."; "a Deed Call for a particular line"; or "the bearing of a particular line shown upon a plat." References to Magnetic North should be avoided except in the cases where a comparison is necessitated by a Deed Call. Where bearings are recited in the deed description, or on an original plat of 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. The survey drawing must be in complete accord with the real property description shown thereon or attached thereto; any discrepancies between the survey drawing and the description must be shown upon the drawing. When a new parcel is being created reference will be made on the survey drawing to the closest government corner or land line or recorded plat. Where evidence of inconsistencies is found, such as: overlapping descriptions, hiatuses; excess or deficiency; erroneously located boundary lines or monuments; or where any doubt as to the location on the ground of survey lines or property rights exists, the nature of the

       inconsistencies should be shown upon the drawing.

    2. 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.

    3. 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. Measured and plat distances to intersecting streets or rights of way in both directions shall be shown if either of the measured distances vary significantly from the original plat. If because of unusual block lengths, this is not practical, distances to other identifiable survey points may be used.

    4. Surveys of parcels described by metes and bounds within a tract of land shall show the relationship of those parcels to at least one established identifiable real property corner. Survey drawings shall show all information called for in the property description, such as: point of commencement; course bearings; distances; and point of beginning.

    5. If a survey is of all, or any part, of a lot(s) which is part of a recorded subdivision, lot and block numbers or other designations including those of adjoining

    lots and the block number must be shown upon the drawing, either on the detailed survey portion or on a location map.

    * * *

    (13) Open and notorious evidence of boundary lines whether fences, walls, buildings, monuments or otherwise, shall be shown upon

    the drawing.

    * * *

    (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.

    
    

20. The pertinent portions of Rule 21HH-6.003, Florida Administrative Code, in effect from November 27, 1989 until May 25, 1991, are as follows:

    
    

    (4) A reference to all bearings shown must be clearly stated, i.e., whether to "True North"; "Grid North as established by the NOS"; "Assumed North based on a bearing for a well defined line, such as the center line of a road or right of way, etc."; "a Deed Call for a particular line"; or "the bearing of a particular line shown upon a plat." References to Magnetic North should be avoided except in the cases where a comparison is necessitated by a Deed Call.

    In all cases, the bearings used shall be referenced to some well-established line.

    * * *

    1. The survey drawing must be in complete accord with the real property description shown thereon or attached thereto; any discrepancies between the survey drawing and the description must be shown upon the drawing.

       1. Where evidence of inconsistencies is found, such as: overlapping descriptions, hiatuses; excess or deficiency; conflicting boundary lines of monuments; or where any doubt as to the location on the ground of survey lines or property rights exists, the nature of the inconsistencies should be shown upon the drawing.

       2. When a new parcel is being created, reference will be made on the survey drawing and in the description to the closest government corner, land line, recording plat, or other fixed and recorded corner.

    2. All changes in direction, including curves, shall be shown on the survey drawing by angles, bearings or azimuths, and will be

       in the same form as the description, or other recorded document referenced on the drawing. Curved lines with true curves shall show the radii, arc distances and central angles, or radii, chord distances and chord bearings.

       Where curved lines are not mathematically definable, that fact must be noted upon the drawing with sufficient measurements shown upon the drawing to position the line. When intersecting lines are non-radial to a curve, sufficient angular data shall be shown to relate the line to the curve.

    3. If a survey is all or part of a lot which is part of a recorded subdivision, lot and

    block numbers or other designations, including those of adjoining lots, and the block numbers must be shown legibly upon the drawing. When field measured directions and distances vary from recorded directions and distances, a comparison between the recorded and measured directions and distances must be shown upon the drawing. Where the block lines are straight, a comparison between recorded directions and distances to field measured directions and distances to the nearest street center line, right of way intersection or other identifiable reference points must be shown upon the drawing. Where the block lines are curved, a comparison between the recorded directions and distances and computed directions and distances based upon the recorded data to field measured directions and distances to an identifiable reference point will be shown. Where a difference is found between the comparison of recorded directions and distances and measured directions and distances to an identifiable reference point, then a similar comparison must be shown between the recorded directions and distances and the measured directions and distances to an identifiable reference point in the opposite direction. Any excluded portion of a lot(s) and the dimensions thereof shall be shown upon the drawing.

    * * *

    1. All recorded public and private rights of way shown on applicable recorded plats adjoining or across the land being surveyed shall be located and shown upon the drawing. Easements shown on applicable record plats or open and notorious evidence of easements of rights of way on or across the land being surveyed shall be located and shown upon the drawing. If streets or street rights of way abutting the land surveyed are not physically open, a note to this effect shall be shown upon the drawing. If location of easements

       or rights of way of record, other than those on record plats, is required, this

       information must be furnished to the surveyor.

    2. Open and notorious evidence of boundary lines, such as: fences, walls, buildings, monuments or otherwise, shall be shown upon

    the drawing, together with dimensions sufficient to show their relationship to the boundary line(s).

    * * *

    (13) Location of fixed improvements pertinent to the survey shall be shown upon the drawing

    in reference to the boundaries, either directly or by offset lines. If fixed improvements are not located or do not exist, a note to this effect shall be shown upon the drawing. Pertinent improvements are improvements made for the enjoyment of the property being surveyed and shall include docks, boathouses, and similar improvements.

    * * *

    (18) ABBREVIATIONS:

    1. Abbreviations generally used by the public or in proper names that do not

       relate to matters of survey are excluded from the legend requirement.

    2. Acceptable abbreviations on the face of maps, plats, or survey drawings are:

       N = North S = South E = East W = West

       or any combination such as NE, SW, etc.

       0 = Degrees

       ' = Minutes when used in a bearing " = Seconds when used in a bearing ' = Feet when used in a distance " = Inches when used in a distance AC = Acres

       = = More or less (or Plus or Minus)

    3. Any other abbreviations relating to survey matters must be clearly shown within a legend

    or notes appearing on the face of the drawing.

    
    

21. Rule 21HH-6.002, Florida Administrative Code, provides, in part:

    
    

    (3) Map of Survey, Sketch of Survey, Plat of Survey, Right of Way Survey, or other similar titles: shall mean any drawing of a parcel or tract of real property used for the purpose

    of depicting the results of a field survey. Each survey drawing shall state the type of survey it depicts as defined in this rule.

    * * *

    (5) Reference point: shall mean any defined position that is or can be established in relation to another defined position.

22. In these cases, the Department bears the burden of proof to establish, by clear and convincing evidence, the violations for which it seeks disciplinary action against the Respondent. The Department has met that burden. The Respondent failed to comply with the minimum technical standards on the five survey drawings introduced in these cases. While the deficiencies were limited and did not adversely effect the overall integrity of the surveys, the Respondent, nonetheless, failed to include information required by rule. Respondent also committed minor errors regarding data depicted. As a result, the Respondent failed to meet the minimum technical standards for land surveying and is, therefore, guilty of having violated Section 472.033,(1)(h) Florida Statutes.

    
    

23. It is not concluded that Respondent violated Section 472.033(1)(g), Florida Statutes, since the errors or omissions noted above do not rise to a level to suggest fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of land surveying. The deficiencies outlined in the findings of fact are technical in nature and did not compromise the overall integrity of the surveys. While the legislature has authorized the Board to promulgate rules relating to the practice of land surveying which establish minimum technical standards, it cannot be concluded that the technical violation of some of those standards is, in itself, confirmation of the negligence or incompetence of the registrant. The Department failed to prove that the deficiencies in these cases establish negligence or incompetence.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Board of Professional Land Surveyors enter a final order finding the Respondent guilty of having violated Section 472.033(1)(h), Florida Statutes, and imposing an administrative fine in the amount of $1500.00.

DONE and ENTERED this 30th day of June, 1992, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 30th day of June, 1992.

APPENDIX TO CASE NOS. 91-7302 AND 91-8259

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER:

1. Paragraphs 1 through 4 are accepted.

2. Paragraphs 5 and 6 are rejected as comment, argument, or irrelevant.

3. The first sentence of paragraph 7 is accepted, the remainder rejected as conclusion of law or recitation of rules.

4. Paragraphs 8 through 11 are accepted.

5. Paragraph 12 is rejected as a conclusion of law.

6. Paragraphs 13 through 17 are accepted.

7. Paragraphs 18 and 19 are rejected as conclusion of law.

8. Paragraph 20 is accepted.

9. Paragraph 21 is rejected as statement of the rule, not fact at issue.

10. Paragraph 22 is accepted except as to the conclusion of law of the violation.

11. Except as to the conclusion of law and the recitation of the rule, paragraph 23 is accepted.

12. Paragraphs 24 and 25 are accepted.

13. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 26 is accepted.

14. Except as to the conclusion of law regarding a violation, paragraph 27 is accepted.

15. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 28 is accepted.

16. Paragraph 29 is rejected as irrelevant or contrary to the weight of the evidence; the paragraph is vague as it does not specify to which "above abbreviations" it refers.

17. Paragraphs 30 and 31 are accepted.

18. Paragraph 32 is rejected as comment, not fact in dispute.

19. Except as to the conclusion of law regarding a violation, paragraph 33 is accepted.

20. Except as to the conclusion of law regarding a violation, paragraph 34 is accepted.

21. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 35 is accepted.

22. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 36 through 42 are accepted.

23. Paragraph 43 is rejected as comment or irrelevant.

24. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 44 through 51 are accepted

25. Paragraphs 52 and 53 are rejected as repetitive, comment, or irrelevant.

26. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 54 through 65 are accepted.

27. Paragraphs 66 through 71 are rejected as argument, conclusion of law or comment.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT:

1. None submitted.

COPIES FURNISHED:

William S. Cummins Senior Attorney

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Gary D. Hunt

247 Lake Ellen Drive Casselberry, Florida 32707

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Angel Gonzalez, Executive Director Board of Professional Land

Surveyors

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-007302

Orders for Case No: 91-007302