STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 95-1159

)

ANDREW T. EDGEMON )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case in Tampa, Florida, on September 27, 1995, before the Division of Administrative Hearings by Carolyn S. Holifield, a duly designated Hearing Officer.

APPEARANCES

For Petitioner: Miriam S. Wilkinson, Esquire

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Mark W. Reagan, Esquire

Post Office Box 321028 Cocoa Beach, Florida 32932

STATEMENT OF THE ISSUES

Whether Respondent, Andrew T. Edgemond, committed the offenses alleged in the Amended Administrative Complaint, and, if so, what discipline should be imposed against Respondent's land surveyor's license.

PRELIMINARY STATEMENT

On or about January 20, 1995, the Petitioner, Department of Business and Professional Regulation (Department), filed an Amended Administrative Complaint against the Respondent, alleging in two counts, that he violated Section 472.033(1), Florida Statutes.

Specifically, Count I alleges that Respondent violated Section 472.033(1)(h), Florida Statutes, by failing to include adequate and accurate information in his special purpose survey. Count II alleges that the survey which Respondent purports to be a special purpose survey is not a special purpose survey, but was a means to avoid doing an appropriate boundary survey. The Department alleges that by failing to perform an appropriate boundary survey, Respondent is guilty of fraud, deceit, negligence, incompetency or misconduct in the practice of land surveying, in violation of Section 472.033(1)(g), Florida Statutes.

Respondent denied the allegations contained in the Amended Administrative Complaint and requested a formal hearing. By letter dated March 8, 1995, the Department of Business and Professional Regulation referred the matter to the Division of Administrative Hearings to conduct a formal proceeding. The formal hearing was originally set for August 10, 1995. However, based on a motion for continuance filed by the Department, the hearing was reset for September 27, 1995, when it was held as scheduled.

At the hearing, Petitioner presented the testimony of Henry Rivera, an investigator with the Department; Irene Dykes, a clerk typist with the Plant City Building Department; and Lewis Kent, a licensed land surveyor in the State of Florida and president of George F. Young, Inc. Petitioner also introduced three exhibits. At the Department's request, official recognition was taken of Rule Chapter 21HH-6, Florida Administrative Code, which was in effect at the time the alleged violations occurred.

Respondent testified on his own behalf and presented the testimony of Richard Hinson, a licensed land surveyor registered in the State of Florida and president of BHI, Inc. Respondent offered no exhibits into evidence.

A transcript of the proceeding was filed on October 16, 1995. Both parties submitted proposed recommended orders. Respondent filed separate proposed findings of fact and closing arguments. Explicit rulings on the parties' proposed findings of fact may be found in the attached Appendix to Recommended Order, Case No. 95-1159.

FINDINGS OF FACT

1. The Department is the state agency charged, in conjunction with the Board of Professional Surveyors and Mappers, with the responsibility to license, regulate, and discipline land surveyors in the State of Florida.

   
   

2. Respondent is, and has been at all times material hereto, a licensed land surveyor in the State of Florida, having been issued license number LS 0002347. Respondent was initially licensed as a land surveyor in 1971 and has practiced land surveying in Plant City, Florida for more than twenty years.

   
   

3. On or about March 22, 1989, Respondent was contacted by a client who requested that Respondent prepare a survey specifying the location of certain mono form boards. Mono form boards are temporary structures and are not fixed improvements, although they may be used to indicate where fixed improvements will be located. The client indicated that the survey was needed immediately because the client was to have a slab of concrete poured before the next morning.

   
   

4. Prior to conducting the survey, Respondent asked his client for a legal description of the property on which the form boards were located. The client provided Respondent with a copy of a building permit which contained a reference to a preliminary plat. Respondent then went to City Hall in Plant City, Florida where he obtained a preliminary plat which included the property on which the form boards were located. After leaving the City Hall, Respondent went to his office to determine where the property was located. In researching the files in his office, Respondent found a boundary survey which included a property line which was coincident with the property the client had asked him to survey.

5. Having obtained the building permit, preliminary plat, and the boundary survey, Respondent went into the field to measure the location of the form boards.

   
   

6. Upon returning to his office, Respondent prepared a survey which indicated the location of the mono form boards. The survey, dated March 22, 1989, was signed and sealed by Respondent. On the survey was the following:

   
   

   "SPECIFIC PURPOSE SURVEY"

   "FOR BUILDING PERMIT PURPOSES ONLY"

   
   

   The survey drawing contained a preliminary description as follows: PRELIMINARY DESCRIPTION

   Lot 22 of WALDIN LAKE UNIT 55 as per "Preliminary Plat" on file in City Engineers office, City of Plant City, Florida.

   
   

7. Respondent made the decision to designate the survey a specific purpose survey after he reviewed Rule 21HH-6.002, Florida Administrative Code. After reviewing the various types of surveys outlined in the rule, Respondent concluded that a survey done solely to provide a client with the location of mono form boards that were already in place came within the definition of a specific or special purpose survey.

   
   

8. A specific or special purpose survey is one that is performed for specified purposes and does not come within the definition of other types of surveys outlined in Rule 21HH-6.002, Florida Administrative Code. The specific purpose survey allows the surveyor to perform a survey that meets the client's particular need. However, a specific purpose survey may not be used to circumvent the law and must conform to the minimum technical standards.

   
   

9. The Department's position is that a specific purpose survey was inappropriate in the instant case. Moreover, even if a specific purpose survey was appropriate, the Respondent's survey failed to meet the minimum technical standards.

   
   

10. With regard to the type of survey performed by Respondent, the Department's expert witness, Lewis Kent, testified that Respondent's use of the specific purpose survey in this case was improper. Although this was his opinion, Mr. Kent candidly admitted that he was not sure what Respondent was requested to do by the client.

    
    

11. Mr. Kent further testified that standard practice requires that boundary surveys be performed prior to new construction. Apparently, Mr. Kent believed that the situation in this case involved new construction. Based on that belief, he concluded that Respondent was obligated to perform a boundary survey. Notwithstanding this conclusion, no authority was cited for this proposition. In fact, evidence was presented that the Plant City Building Department did not require a boundary survey as a condition of issuing a building permit for commercial projects, such as the proposed project of Respondent's client.

    
    

12. At one point, Mr. Kent stated that the Respondent was required to perform a boundary survey of the entire 1,539.523 acre tract, even though the tract had already been surveyed. During the course of his testimony, Mr. Kent

    retreated from this position and indicated that Respondent was not obligated to retrace the entire tract, but should have retraced enough of the tract to tie his survey to a legal corner.

    
    

13. Notwithstanding the Department's position that the specific purpose survey was inappropriate in this case and that Respondent should have performed a boundary survey, its expert witness testified that a boundary survey was not the only way to locate the mono form boards.

    
    

14. During his rebuttal testimony, Mr. Kent indicated that perhaps the type of survey that Respondent should have performed was a "construction layout survey" as that term is defined in Rule 22HH-6.002 (6)(c), Florida Administrative Code.

    
    

15. In regard to the second allegation, the Department asserted that even if the survey was appropriately designated a specific purpose survey, the survey failed to meet the minimum technical standards. Specifically, the Department alleged that Respondent's specific purpose survey failed to include an adequate legal description and a legend which included abbreviations used in the drawing.

    
    

16. According to the Department's expert witness, the legal description on Respondent's specific purpose survey failed to meet the minimum technical standards in that the description on the face of the survey referred only to a preliminary plat, which by its very nature is subject to change. However, at the time Respondent prepared the specific purpose survey, the subdivision had not yet been platted.

    
    

17. The Department's position is that the minimum technical standards required that the survey include a phrase describing the legal metes and bounds, and show the location of the mono form boards in relation to a boundary line. According to the Department's expert, as presently drawn, another surveyor could not reproduce this survey without first obtaining a copy of the preliminary plat referred to on the survey.

    
    

18. Richard Hinson, the expert witness for Respondent has been a licensed land surveyor in the State of Florida since 1982. During that time, Mr. Hinson has performed several hundred boundary surveys in Plant City, Florida and over a hundred surveys for building permit purposes.

1. The testimony of Mr. Hinson conflicted directly with the testimony of Mr. Kent. It was Mr. Hinson's testimony that in the instant case, a specific purpose survey is appropriate. Based on what Respondent's client requested, a measurement showing the location of the mono form boards, the survey was appropriately designated a specific purpose survey.

   
   

2. The Department asserted that, at a minimum, Respondent was obligated to do a boundary survey of Lot 22. However, in this situation, a boundary survey of preliminary Lot 22 would have made no difference in the location of the mono form boards because Lot 22 did not exist when Respondent prepared the survey.

   
   

3. With regard to the preliminary description on the survey, based on Mr. Hinson's opinion, the specific purpose survey prepared by Respondent meets the minimum technical standards. While the survey does not recite or go back to a corner for the description, the description given is that it relates to the preliminary plat.

4. With respect to the use of a specific purpose survey, Mr. Hinson's opinion was that, in this case, it was appropriate for Respondent to perform a specific purpose survey to measure the location of form boards. This opinion was based on two factors, both of which were present in this case. First, prior to performing the survey, the surveyor must have reviewed the following: a boundary survey, a building permit with a legal description describing Lot 22 according to a preliminary plat, and a copy the preliminary plat showing Lot 22. Second, the surveyor must have determined that the preliminary plat was rendered out of the boundary survey.

   
   

5. In this case, prior to performing the specific purpose survey, Respondent utilized a boundary survey of the tract, which included Lot 22 as shown on the preliminary plat, and determined that the preliminary plat was rendered from that survey. After assuring himself that the preliminary plat was rendered from the boundary survey which he reviewed, Respondent went to the site and proceeded to measure and draw the location of the mono form boards in his field notes.

   
   

6. Respondent's survey shows Lot 22 and notes that this is a preliminary description based on a preliminary plat. The preliminary plat is referenced on the survey. The drawing, which depicts the location of the mono form boards, measures the distance from the boundary of Lot 22 to Old Sydney Road and to Sydney Road. The drawing also measures the distance of the mono form boards from the boundary lines of Lot 22. The accuracy of these measurements were undisputed by the Department.

   
   

7. Based on Mr. Hinson's opinion, Respondent's decision to designate the survey in the instant case as a specific purpose survey was appropriate. Also, with respect to the preliminary description that appears on the face of the survey, the survey meets the minimum technical standards.

   
   

8. The specific purpose survey prepared by Respondent fails to meet the minimum technical standard set forth in Rule 21HH-6.003(5), Florida Administrative Code. That rule requires that the abbreviations used on the drawing be noted within a legend on the face of the drawing. In this case, the abbreviations used on the survey are not noted on a legend or anywhere else on the survey.

   
   

9. No evidence was presented to indicate that the specific purpose survey performed by Respondent inaccurately depicted the location of the mono form boards. Neither was evidence presented which even claimed to indicate that the survey prepared by Respondent failed to comply with the client's request.

   
   

10. Respondent has been a licensed land surveyor in the State of Florida for twenty-four years, and there is no evidence that he has been subjected to disciplinary action on any prior occasion.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceeding. Section 120.57(1), Florida Statutes.

    
    

12. In its Amended Administrative Complaint filed herein, the Department alleges that Respondent has violated Section 472.033(1)(g) and (h), Florida Statutes.

13. Section 472.033, Florida Statutes, provides in relevant part:

    
    

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

       * * *

       1. Upon proof that the licensee is guilty of fraud, or deceit, or of negligence, incompetence, 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,....

       
       

14. Rule 21HH-2.001(3), Florida Administrative Code, 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 boards....

    
    

15. The minimal technical standards for surveys are found in Rule 21HH-

    6.003 (1) through (17), Florida Administrative Code.

    
    

16. When an agency attempts to discipline a professional license, as here, it has the burden of establishing the misconduct alleged by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987).

    
    

17. The nature of clear and convincing evidence has been described in Slomowitz v. Walker, 429 So.2d 797, at 800 (Fla. 4th DCA 1983), as follows:

    
    

    ... clear and convincing evidence requires that the evidence must be found to be credible; that the facts to which the witnesses testified must be distinctly remembered; the testimony must be precise and explicit and the witness must be lacking in confusion as to the facts at issue.

    The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

18. The Department failed to prove that Respondent's performance of a specific purpose survey was improper and that Respondent should have performed a boundary survey. Rule 21HH-6.002(6), Florida Administrative Code, defines the types of surveys, and provides in relevant part:

    
    

    (g) Land or Boundary Survey: shall mean a survey, the primary purpose of which includes, but is not limited to, the determining of the perimeters of a parcel or tract of land by establishing or

    reestablishing corners, monuments, and boundary lines for the purposes of describing, locating of fixed improvements, or platting or dividing the parcel.

    * * *

    (l) Specific or Special Purpose Survey: shall mean a survey performed for a specified purpose other than as described herein.

    
    

19. The Department presented no evidence which demonstrated that the survey prepared by Respondent came within the purview of a boundary survey as that term is defined in Rule HH21-6.002 (6)(g), Florida Administrative Code. According to the definition set forth in rule, a boundary survey is one which has as its primary purpose to determine the perimeters of a parcel or tract of land for the purpose of describing or locating fixed improvements, or platting or dividing the parcel. A specific purpose survey is one which is performed for a specified purpose other than one described elsewhere in the rule. The specific purpose survey allows the surveyor to perform a survey which meets a client's particular needs.

    
    

20. Respondent presented competent and substantial evidence that the purpose of the survey was to determine the location of form boards which were already in place. This evidence was unrefuted by the Department whose expert witness who stated that he did not know what the client had requested Respondent to do. Based on the evidence presented, Respondent's survey was "performed for a specified purpose" not otherwise defined in Rule 21HH-6.002, Florida Administrative Code.

    
    

21. The evidence fails to support a finding that Respondent was under a duty or legal obligation to perform a boundary survey and that he failed to do so. There was no clear and convincing evidence that Respondent's specific purpose survey was improper. Consequently, the evidence does not sustain the charge of fraud, deceit, negligence, incompetency or misconduct against the Respondent.

    
    

22. The Department failed to prove by clear and convincing evidence that Respondent's survey failed to meet minimal technical standards in that it contained an inappropriate legal description. In this regard, the Department failed to specify the precise minimum technical standard that was violated and also, failed to clarify the type of legal description that was required. The Department presented no evidence that there was any discrepancy between the survey drawing and the preliminary description shown on the survey.

    
    

23. The Department has met its burden with respect to Respondent's failure to meet minimum technical standards in that he included no explanations of the abbreviations used on his survey. This failure violates Rule 21HH- 6.003(5), Florida Administrative Code, which provides:

    
    

    ...Any abbreviations used on the drawing must be clearly noted within a legend appearing on the face of the drawing.

    
    

24. While this deficiency is a limited one and did not adversely affect the integrity of the survey, the Respondent failed to meet the minimum technical standard set forth in Rule 21HH-6.003(5), Florida Administrative Code. As a result, the Respondent is guilty of having violated Section 472.033(1)(h), Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation, Board of Land Surveyors and Mappers, enter a final order finding Respondent guilty of violating Section 472.033(1)(h), Florida Statutes, and imposing a fine of $250.00

RECOMMENDED that Count II of the Amended Administrative Complaint be DISMISSED.

RECOMMENDED this 29th day of November, 1995, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD

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 29th day of November, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1159

To comply with the requirements of Section 120.59(2), Fla. Statutes, (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

20. Rejected as argument.

21-22. Rejected as not supported by the weight of the evidence.

1. Accepted.

2. Accepted except at time of survey the lots were preliminary.

3. Rejected as argument.

26-27. Rejected as not supported by the weight of the evidence.

28. Accepted except statement that Respondent was obligated to retrace part of the survey is rejected.

29-31. Rejected as not supported by the weight of the evidence.

1. Rejected as irrelevant, immaterial, or unnecessary.

2. Accepted.

34-35. Rejected as argument.

36. Accepted.

37-40. Rejected as not supported by the weight of the evidence.

41. Accepted.

42-43. Rejected as irrelevant, immaterial, or unnecessary.

1. Rejected as not supported by the weight of the evidence.

2. Rejected as conclusion of law.

46-48. Rejected as irrelevant, immaterial, or unnecessary.

Respondent's Proposed Findings of Fact

1. Accepted and incorporated.

2. Unsupported by record evidence.

3-7. Accepted and incorporated.

1. Rejected as conclusion of law.

2. Rejected as irrelevant, immaterial, or unnecessary.

1-3 of page 2. Rejected as conclusions of law.

COPIES FURNISHED:

Miriam S. Wilkinson, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Mark W. Reagan, Esquire

P.O. Box 321028

Cocoa Beach, Florida 32932

Angel Gonzalez, Executive Director Board of Professional Land Surveyors 1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Business and Professional Regulation written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Business and Professional Regulation concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 95-001159

Orders for Case No: 95-001159