STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 95-5375

)

DONALD F. MOWREY, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on April 11, 1996 a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Port St. Joe, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Miriam Wilkinson, Esquire

Department of Business and Professional Regulation

Division of Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2212

For Respondent: Donald F. Mowrey, Jr., Pro Se

No appearance at hearing STATEMENT OF ISSUE

Should Respondent's Florida license to practice land surveying and mapping be disciplined based upon alleged misconduct in his practice and as a consequence of a final judgment allegedly entered against him in the County Court in and for Gulf County, Florida?

PRELIMINARY STATEMENT

An Administrative Complaint was brought against Respondent under DBPR Case Number 92-13173. Respondent contested the facts in that complaint. Therefore, the case was forwarded to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. That hearing was held on the aforementioned date.

Respondent did not attend the hearing, although a notice was provided to Respondent through ordinary mails, unreturned and by publication in a local newspaper, The Star, published weekly in Port St. Joe, Gulf County, Florida. Gulf County is the county in which Respondent was known to reside.

Petitioner presented its case in Respondent's absence. In that presentation the witnesses Robert Connell, Tim Morrison and Robert Waers were called to testify. Petitioner's exhibits 1 through 7 were admitted. Official recognition was also given Chapter 21HH, Florida Administrative Code.

A hearing transcript was filed on April 26, 1996.

On May 3, 1996, Petitioner filed a proposed recommended order. The facts in that proposal are addressed in an appendix to the recommended order.

Respondent did not submit a proposed recommended order.

FINDINGS OF FACT

1. At times relevant Respondent has held license number LS0001999 issued by the Florida Board of Land Surveyors and Mappers. His license is as a land surveyor and mapper.

   
   

2. Respondent held an active license from December 31, 1973 through March 9, 1995. On the latter date Respondent's license became delinquent "Due to Non- Renewal." The license remained in a delinquent status at the time of hearing.

   
   

3. In this case the Florida Board of Professional Surveyors and Mappers under authority set forth in Chapter 472, Florida Statutes, seeks to impose administrative discipline against Respondent.

   
   

4. On April 24, 1991 Respondent provided John W. Smith a signed and sealed boundary survey drawing for Lot 8, Pelican Walk in Gulf County, Florida.

   
   

5. In November 19, 1991 Respondent provided John W. Smith with a revised signed and sealed boundary survey drawing for Lot 8, Pelican Walk in Gulf County, Florida.

   
   

6. Robert Waers is licensed as a land surveyor in Florida. As such he is an expert in land surveying. He reviewed the subject boundary survey drawings prepared by Respondent. The purpose for that review was to identify whether Respondent had complied with minimum technical standards for land surveying when preparing the survey drawings.

   
   

7. As Mr. Waers established, a boundary survey is a procedure by which the surveyor identifies the property lines of a parcel of property as described by a legal description. The process also involves the identification of rights associated with that parcel as it exists on the ground with relation to the legal description.

   
   

8. In Mr. Wares' expert opinion as a land surveyor Respondent failed to meet minimal standards or the standard of care within the surveying community when preparing the survey drawings at issue.

   
   

9. Basically Mr. Wares established that the survey drawings were not complete, defensible, adequate and accurate.

   
   

10. As Mr. Wares established, the survey drawings in depicting the outer boundaries on the parcel would lead one to believe that they coincide with the legal description for the parcel. This circumstance would purport to establish that the dimensions on the ground are precisely the same as those described in the legal description. However, the legal description does not form a closed

    geometric figure. When the geometry of the legal description is computed it does not return to the point of beginning. It misses that point by nine tenths of a foot. Consequently, it would be impossible to show the same measurements on the ground on the survey drawing as would be found in the legal description and accurately portray the situation on the ground. There would be differences between the survey drawing on the ground as physically measured and what is written in the legal description. Respondent has failed to note those differences through a comparison between measurements on the ground and those measurements in the legal description and the recordation of the difference. To properly perform the comparison Respondent would need to reflect the distances measured on the ground and the record distance found with both sets of measurements noted on the survey drawings, which he did not do.

    
    

11. In both surveys in question the field data does not support the survey drawings. They are incomplete. They are so disorganized as to make many of the matters contained in the field notes indiscernible. For that reason Mr. Waers, as an expert, was unable to recreate the information in the field data as a means to determine the correct position of the boundaries in the survey drawing. Nor can the field data be relied upon as a means to compute a closed traverse of the parcel, referring to geometry relative to a closed traverse by use of the field notes.

    
    

12. In the April, 1991 survey Respondent incorrectly located a residence.

    
    

13. The survey drawings did not adequately nor accurately depict the nature or geometry of the fixed improvement. While the dimensions of the fixed improvement are sufficiently detailed, the position of the improvement related to the boundary line for the property is not acceptable in the April, 1991 survey.

    
    

14. The April, 1991 survey drawings indicate dimensions of 13.8 feet and

    15.7 feet at the northerly and southerly ends of the residence, whereas the November, 1991 survey drawings describes those dimensions as 10.65 and 9.8 feet respectively.

    
    

15. As Mr. Waers described a monument is a marker on the ground at boundary corners for the property or along boundary lines. Its purpose is to assist in better establishing the location of a boundary line. The monuments are physical objects. In the event that the monument location and the boundary lines do not coincide, the expectation is that the surveyor will describe that conflict in the survey drawings by comparison. In this case, conflicts existed between boundary lines and monuments and they were not shown on the April and November, 1991 survey drawings.

    
    

16. In both the April, 1991 and November, 1991 survey drawings Respondent included legends or notes describing abbreviations and their complete meaning such as R/W for right of way and CH for cord. However, in those drawings, Respondent used the initials RLS, CONC and FR, terms not commonly known by the public, without describing the full meaning of those initials in a legend or note.

    
    

17. All matters which have been discussed were observed by Mr. Waers and in his opinion, which is accepted, constitute the failure to comply with minimal technical standards for surveying when examining the survey drawings from April, 1991 and November, 1991 prepared by Respondent. Furthermore, Mr. Wares's opinion that Respondent failed to use due care in performing the surveys is accepted.

18. As established by Mr. Waers, Respondent should have gone to the field and collected sufficient data, made sufficient measurements as to accurately position the residence on the property and to show property lines in all instances that might affect property rights as a means to allow the land owner to make additions to the house without encroaching upon his neighbors property. To perform the survey properly Respondent should have made notes and comparisons between the legal description in the record and the physical boundaries found on the parcel.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

20. Petitioner must prove the alleged violations set forth in the administrative complaint by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

21. Counts I and V accuse the Respondent of failing to meet minimum technical standards for surveyors in preparing the survey drawings in April, 1991 and November, 1991, respectively.

    
    

22. In particular Respondent is alleged to have failed to comply with the standards by not having sufficient evidence of field data necessary to support the survey drawings in violation of Rule 21HH-6.003(2), Florida Administrative Code.

    
    

23. In both surveys Respondent failed to meet those minimum requirements for reasons discussed in the fact finding.

    
    

24. Respondent is alleged to have violated the minimum standards related to the need for the survey drawings to show the discrepancy between the legal description that does not close and the boundaries on the ground in violation of Rule 21HH-6.003(6), Florida Administrative Code.

    
    

25. Respondent has violated those standards in both surveys for reasons set forth in the fact finding.

    
    

26. Respondent is alleged to have violated minimal technical standards by failing to show the conflicting boundary lines and monuments in the survey drawings, in violation of Rule 21HH-6.003(6), Florida Administrative Code.

    
    

27. Respondent has violated those standards in both surveys for reasons set forth in the fact finding.

    
    

28. It is alleged that Respondent has failed to show any comparisons of record and measured distances in the survey drawings, in violation of Rule 21HH- 6.003(9)(c), Florida Administrative Code.

    
    

29. Respondent has violated the standards in both surveys for reasons set forth in the fact finding.

    
    

30. Respondent is alleged to have failed to show fences relative to property lines in the surveys, in violation of Rule 21HH-6.003(11), Florida Administrative Code.

31. No competent substantial proof has been shown to establish those violations.

    
    

32. Respondent is alleged to have failed to adequately and accurately depict the nature and geometry of the fixed improvements. It is alleged that there are no notes disclaiming fixed improvements not shown on the surveys, in violation of Rule 21HH-6.003(13), Florida Administrative Code.

    
    

33. Respondent has violated those standards in the April, 1991 survey related to the residence for reasons set forth in fact finding. No competent substantial evidence was presented to show a violation of those standards for the November, 1991 survey.

    
    

34. Respondent is alleged to have provided insufficient field data as would be necessary to make a determination of the correct position of the boundary, in violation of Rule 21HH-6.003(15), Florida Administrative Code.

    
    

35. Respondent has violated those standards in both surveys for reasons set forth in the fact finding.

    
    

36. Respondent is alleged to have failed to substantiate the survey drawings by field measurements and to have failed to provide evidence that would be necessary to complete a closed traverse, in violation of Rule 21HH-6.003(17), Florida Administrative Code.

    
    

37. Respondent has violated those standards in both surveys for reasons set forth in the fact finding.

    
    

38. Respondent is alleged to have failed to identify abbreviations in the legend or note in the survey drawings, in violation of Rule 21HH-6.003(18), Florida Administrative Code.

    
    

39. Respondent has violated those standards in both surveys for reasons set forth in fact finding.

    
    

40. In association with Counts I and V to the administrative complaint, where violations of minimum standards have been found, Respondent is subject to discipline in accordance with Section 472.033(1)(h), Florida Statutes, for violating a rule related to his conduct as a land surveyor.

    
    

41. Counts II and VI pertain to the April, 1991 and November, 1991 surveys, respectively. The Respondent is accused of failing to meet the requirements set forth in Rule 21HH-5.002(a) and (b), Florida Administrative Code, by failing to adequately and accurately show improvements as constructed on the subject property.

    
    

42. Respondent has violated those standards in the April, 1991 survey for reasons set forth in the fact finding related to the residence by violating the rule related to his conduct as a land surveyor. For this violation Respondent is subject to discipline in accordance with Section 472.033(1)(h), Florida Statutes. No violation was proven related to the November, 1991 survey.

    
    

43. Counts III and VII to the administrative complaint pertain to the April, 1991 and November, 1991 surveys, respectively. In those counts Respondent is accused of failing to maintain field notes that substantiate the

    survey drawings and by that conduct failing to comply with Rule 21HH-6.006(2), Florida Administrative Code.

    
    

44. Respondent has violated those standards in both surveys for reasons set forth in the fact finding. For the rule violations related to his conduct Respondent is subject to the discipline contemplated by Section 472.033(1)(h), Florida Statutes.

    
    

45. Counts IV and VIII pertain to the April, 1991 and November, 1991 surveys, respectively. Those counts accuse the Respondent of failing to use due care in the performance of his land surveying related to his competence and by reason of his negligence as described in Section 472.033(1)(g), Florida Statutes. Respondent has violated that provision in both surveys for reasons set forth in the fact finding and is subject to discipline in accordance with Section 472.033(1)(g), Florida Statutes.

    
    

46. Count IX to the administrative complaint accuses the Respondent of a violation of Section 472.033(1)(h), Florida Statutes for the failure to perform any statutory or legal obligation placed upon his license as a land surveyor and mapper. This violation is premised upon the allegation that on or about June 25, 1992, in Case Number 92-71, in and for the County Court, Gulf County, Florida, a judgment was entered against Respondent in the amount of $700.00 plus court costs of $46.50 which Respondent did not satisfy. Proof at hearing established that John W. Smith obtained a judgment in the amount of $700.00 and costs of $46.50 in a court action. It was unproven whether that court action related to the matters associated with the land surveys in question and whether the final judgment was satisfied by the Respondent. Thus Respondent would not be subject to discipline in accordance with Section 472.033(1)(h), Florida Statutes and Rule 21HH-2.001(6), Florida Administrative Code.

    
    

47. For the violations found Respondent is subject to the penalties set forth in Section 472.033(3), Florida Statutes, pursuant to guidelines announced in Rule 21HH-9.002, Florida Administrative Code.

    
    

48. Given that Respondent's status as a land surveyor is one in which he is not actively practicing, an administrative fine in the amount of $1,000 is in order, with the imposition of a ninety day suspension should Respondent attempt to reactivate his license.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED:

That the Final Order be entered finding the Respondent in violation of Counts I and V with the exception of part (e) to those counts and part (f) to Count V; in violation of Count II but not Count VI; in violation of Counts III and VII; in violation of Counts IV and VIII; and, absolving him of any violation alleged in Count IX. As a penalty, a $1,000 fine should be imposed, with a ninety day suspension should Respondent attempt to reactivate his license.

DONE and ENTERED this 15th day of May, 1996, in Tallahassee, 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 15th day of May, 1996.

APPENDIX CASE NO. 95-5375

The following discussion is given concerning Petitioner's proposed findings of fact:

Paragraphs 1 and 2 are subordinate to facts found.

Paragraphs 3 and 4 are not sufficient in themselves to support

findings of fact. See Section 120.58, Florida Statutes.

Paragraph 5 is subordinate to facts found.

Paragraph 6 is not sufficient in itself to support findings of

fact. See Section 120.58, Florida Statutes.

Paragraph 7 is rejected in its suggestion that proof was

sufficient to demonstrate that the civil action pertained to the survey performed by Respondent for Mr. Smith.

Paragraphs 8 through 18 are subordinate to facts found as is the first phrase in Paragraph 19.

The remaining phrases in Paragraph 19 and Paragraph 20 are not sufficient in themselves to support findings of fact. See Section 120.58, Florida Statutes. Paragraph 21 is subordinate to facts found.

Paragraphs 22 through 27 are not sufficient in themselves to

support findings of fact. See Section 120.58 Florida Statutes.

Paragraphs 28 through 44 are subordinate to facts found.

Paragraphs 45 through 47 are not sufficient in themselves to

support a finding of fact concerning reporting fixed interior improvements. See Section

120.58 Florida Statutes.

Paragraphs 48 through 50 are subordinate to facts found.

Paragraphs 51 and 52 are rejected in the suggestion that proof

was made sufficient to demonstrate that the court case which judgement was obtained was proven to be a case related to the survey performed by Respondent for Mr. Smith.

Paragraph 53 is subordinate to facts found.

COPIES FURNISHED:

Miriam Wilkinson, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Donald F. Mowrey, Jr.

312 Iola Street

Port St. Joe, Florida 32456

Donald F. Mowrey, Jr. Post Office Box 838

Port St. Joe, Florida 32456-0838

Angel Gonzalez, Executive Director Department of Business and

Professional Regulation 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 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: 95-005375

Orders for Case No: 95-005375